Section 1983 Litigation

Karen M. Blum
Suffolk University Law School

Kathryn R. Urbonya
The College of William & Mary School of Law

Federal Judicial Center 1998
This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to conduct and stimulate research and development for the improvement of judicial administration. The views expressed are those of the authors and not necessarily those of the Federal Judicial Center.

Preface vii Chapter 1: Introduction to Constitutional Torts Litigation 1
History 2 Jurisdiction 3 Prima Facie Case 4

Chapter 2: Action “Under Color of Law” 5
Joint Actions 7 Intertwined Relationships 8 State Encouragement 10 Public Function 10

Chapter 3: Deprivation of Selected Constitutional Rights 13
Procedural Due Process Claims 13 Substantive Due Process Claims 18 DeShaney and Affirmative Duty Cases 19 Functional Custody 19 State-Created Danger 22 State of Mind 24 Use of Force by Governmental Officials 25 Unreasonable Force Claims Under the Fourth Amendment 27 Malicious Force Claims Under the Eighth Amendment 29 Excessive Force Claims Under the Fourteenth Amendment 30 Malicious Prosecution Claims Under the Fourth Amendment 31 Conditions-of-Confinement Claims Under the Eighth Amendment 35 First Amendment Claims 37 Political Patronage Claims 38 Free Speech Claims 39 Dormant Commerce Clause Claims 40

Chapter 4: Deprivation of Federal Statutory Rights 43
Maine v. Thiboutot: “Plain Language” Approach 43 Defining the Limits of “And Laws” Actions 43 Enforceable Rights 44 Wilder and Suter Synthesized 48


or Discipline 59 Failure to Screen in Hiring 62 Conduct of Policy-Making Officials Attributed to Governmental Entity 64 Supervisory Liability 67 Chapter 6: Absolute Immunity: A Functional Approach 71 Legislative Functions 72 Judicial Acts 73 Distinguishing Judicial and Quasi-Judicial Functions from Administrative Acts 75 Prosecutorial Functions vs. Supervise. Statutes of Limitations.SECTION 1983 LITIGATION Comprehensive Scheme: Congress’s Intent to Foreclose 49 Chapter 5: Governmental and Supervisory Liability 51 State Liability: Eleventh Amendment Immunity and Status as “Person” Under § 1983 51 Municipal Liability 55 No Vicarious Liability 55 Personal and Official Capacity Suits 56 Pleading Requirement 57 Methods of Establishing Municipal Liability 58 Unconstitutional Policy 58 “Custom or Usage” 58 Failure to Train. Investigative Acts 76 Other Official Acts Protected by Absolute Immunity 78 Chapter 7: Qualified Immunity from Damages 81 Defense to Liability 82 “Clearly Established Law” as Applied to Fourth Amendment Claims 83 Immunity from Discovery and Trial 84 Motion to Dismiss 85 Motions for Summary Judgment Before and After Discovery 87 Role of the Judge and Jury 89 Interlocutory Appeals 90 Chapter 8: Procedural Defenses 95 Accrual. and Tolling Rules 95 Claim and Issue Preclusion 96 Chapter 9: Abstention Doctrines 99 Pullman Abstention 99 Burford Abstention 101 Younger Abstention 103 Colorado River Abstention 106 Chapter 10: Remedies 109 Compensatory Damages 109 iv .

CONTENTS Punitive Damages 110 Survival and Wrongful Death Actions Under § 1983 112 Injunctive Relief 113 Declaratory Relief 114 Abstention Doctrines and Statutory Bars to Relief Under § 1983 115 Attorney’s Fees 116 Prison Litigation Reform Act (PLRA) 116 Table of Cases 119 v .


Schwartz and John E. the statute for redressing constitutional and federal statutory violations. and Magistrate Judge Jacob Hagopian (District of Rhode Island) for reviewing drafts of this manuscript. by Martin A. Hogan (District of the District of Columbia). one should consult two leading treatises: Section 1983 Litigation (3d ed. Nahmod. We also deeply appreciate the excellent editorial support from Kris Markarian of the FJC. Morgan (Eastern District of Michigan). Judge Virginia M. Research for this first edition concluded with the 1997–1998 Supreme Court term.Preface This monograph analyzes the fundamental issues that arise in litigation under 42 U. vii . Zobel. § 1983. director of the Federal Judicial Center. and the case law interpreting those issues. Kirklin. 1998).C. We would like to thank Judge Rya W. For a more in-depth treatment of § 1983 lawsuits.S. 1997). by Sheldon H. and Civil Rights and Civil Liberties Litigation (4th ed. Judge Thomas F.


1.” “subjects.” and “and laws. regulation.1 Litigating under this statute is complex. 1 . or other proper proceeding for redress. requirements for equitable relief. § 1983 of the U.” However. For the purposes of this section. injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. under color of any statute. privileges. 42 U. survival of claims. the statute “provides little or no guidance regarding important subjects such as the measure of damages.C.” “under color of law. Through the years. or usage. § 1983 (1996). the Supreme Court has been able to interpret the terms “person. or immunities secured by the Constitution and laws. ordinance. any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity. custom. or causes to be subjected. Code provides a mechanism for seeking redress for an alleged deprivation of a litigant’s federal constitutional and federal statutory rights by persons acting under color of state law.S. statute of limitations.Chapter 1 Introduction to Constitutional Torts Litigation Title 42. availability of punitive damages. suit in equity. or causes to be subjected.S. Section 1983 reads as follows: Every person who. of any state or territory. shall be liable to the party injured in an action at law. subjects. any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights.

policy concerns. Pape. and comity problems. according to Congress in 1871. Id. passion.”2 In an attempt to resolve these issues. Ultimately. the Court has taken steps to examine congressional intent. 2 . at 173–75.” The statute did not emerge as a tool for checking the abuse by state officials. the statute was intended to provide a supplemental remedy. History Congress passed 42 U. § 1983 even if the officials’ actions also violated state law. 42 Stan. L. Later. 2. 365 U. Id. The federal forum was necessary to vindicate federal rights because.” Second. it held that actions taken by state governmental officials.S.”4 The Monroe Court resolved two important issues that allowed 42 U. Beerman. until 1961. (2) to provide “a remedy where state law was inadequate”. First.3 In Monroe. and immunities from suit. 167 (1961). was not available in practice. however.C. and (3) to provide “a federal remedy where the state remedy. were nevertheless actions taken “under color of law. Jack M. though adequate in theory. They also sought prospective injunctive relief against state officials. 4. In short. the Court held that injured individuals have a federal remedy under 42 U. plaintiffs seeking monetary damages sued not only state officials but began to sue cities and counties as well. A Critical Approach to Section 1983 with Special Attention to Sources of Law. 3. Rev.S. 51 (1989). 5. common-law practices.S. state courts could not protect Fourteenth Amendment rights because of their “prejudice. constitutional litigation against state officials developed. federalism issues. even if contrary to state law.C. when the Supreme Court decided Monroe v.”5 With Monroe opening the door to the federal courthouse. § 1983 to become a powerful statute for enforcing rights secured by the Fourteenth Amendment. § 1983 in 1871 as section 1 of the “Ku Klux Klan Act. the Court articulated three purposes for passage of the statute: (1) “to override certain kinds of state laws”.S. neglect. the federal court became the place to reform state governmental practices.C. at 180.SECTION 1983 LITIGATION proper parties. [and] intolerance.

28 U.S.4.C. under color of any State law.”10 6.S. not discretionary. (3) To redress the deprivation.C.CHAPTER 1: I NTRODUCTION TO CONSTITUTIONAL TORTS LITIGATION Jurisdiction Two jurisdictional statutes apply to 42 U. the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. § 1343(a)(3) limits federal jurisdiction to suits involving “equal rights. Gibbs. United Mine Workers v.S.C.” 8. With jurisdiction over federal claims.C. custom or usage. regulation.C.C. § 1331 provides for more expansive jurisdiction because it affords jurisdiction in cases raising a federal question.S.C. statute. supplemental jurisdiction under 28 U.C. privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. and 28 U. § 1367(a) (1993) provides as follows: [I]n any civil action of which the district courts have original jurisdiction.” 8 Formerly known as ancillary and pendent jurisdiction. § 1367 permits both pendent claim and pendent party jurisdiction. 28 U. § 1983.S. of any right. 10. 3 . § 1331. Erwin Chemerinsky.S.S.C. § 5.6 the jurisdictional counterpart of 42 U.S. 7. (4) in exceptional circumstances. 9. where there are other compelling reasons for declining jurisdiction. The district court may decline to exercise supplemental jurisdiction in the following circumstances: (1) the claim raises a novel or complex issue of state law. Federal Jurisdiction. § 1343(a)(3) (1993) provides as follows: (a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . § 1343(a)(3).” Neither statute sets an amount that must be in controversy for jurisdiction to attach. Of the two statutes. many federal courts in 42 U. 7 the general federal question statute.S. . 1994).S.S. ordinance.C. 28 U. 383 U. (3) the district court has dismissed all claims over which it has original jurisdiction. § 1367(b) (1993). § 1983 litigation in federal court: 28 U. § 1331 (1993) provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution. § 1367 changed “the preexisting law in that it makes supplemental jurisdiction mandatory. (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction.S. laws or treaties of the United States. 725 (1966). In contrast. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. at 317 (2d ed.C. 715. 9 28 U. § 1983 suits also have jurisdiction to adjudicate state law claims that arise out of “a common nucleus of operative fact. 28 U.

11. Eighth. 527. infra. and Fourteenth Amendments. 451 U. Parratt v.11 The first element. discussed in Chapter 2. 4.S.C. Fourth. The second element is explained in Chapters 3.S. 4 . and 5.SECTION 1983 LITIGATION Prima Facie Case To establish a prima facie case under 42 U. § 1983. Taylor. involves a factspecific inquiry wherein the court must examine the relationship between the challenged action and the government. which deal with the First. 535 (1981). plaintiffs must allege two elements: (1) the action occurred “under color of law” and (2) the action is a deprivation of a constitutional right or a federal statutory right.

Ct.23 (1970)). 15. Garner.” In the typical § 1983 case. West v.. the under-color-of-law inquiry is not difficult because plaintiffs sue governmental employees and entities for conduct pursuant to their governmental duties and powers. 49–50 (1988). 115 S. Tribe. American Constitutional Law. any state action under the Fourteenth Amendment is action under color of law. many courts 13 and scholars 14 have struggled to distinguish between private action and action under color of law. dissenting)). would not constitute state action if a court were to interpret the “under color of law” element to mean that the person merely acted “‘with the knowledge of and pursuant to [a] statute. J. Kress & Co.18 (quoting Adickes v.g. Tennessee v. 632 (1991) (O’Connor. at 1609 (2d ed. 144.S. 5–7 (1985) (police officer and city were sued for use of deadly force) (discussed infra text accompanying notes 135–38).S. 398 U. Laurence H.R. 457 U. Atkins.Chapter 2 Action “Under Color of Law” Title 42. 500 U.12 However. 964 (1995) (stating that “[i]t is fair to say that ‘our cases deciding when private action might be deemed that of the state have not been a model of consistency’”) (quoting Edmonson v. when plaintiffs sue private actors who are “linked” to state officials in different ways. Action “under color of law. courts 12. at 935 n. 5 . 14. but is somehow linked to the government. 471 U. e. First. § 81-1. 162 n.’ a set of rules for determining whether governmental or private actors are to be deemed responsible for an asserted constitutional violation”).S. 15 Second.. § 1983 of the U. the Supreme Court has articulated two guideposts.” however.S. 1988) (“the Supreme Court has not succeeded in developing a body of state action ‘doctrine. Passenger Corp. 614.. 1. when the defendant is not a government employee. Edmondson Oil Co. 961. Leesville Concrete Co.. Lugar v.S. Code imposes liability only upon those individuals and entities that act “under color of law. Lebron v. 922.. In response.’” Id. 13. See.. National R. 935 (1982).S. 42. 487 U.

. 19. professionals. 658 (1978). at 49–50.21 Similarly. such as a city or county. or a public function performed. although paid by the state to defend a criminal suspect. West..24 act as an adversary to the state. 167 (1961). 17. Pape. 325 (1981).” is a governmental entity created by Congress).23 Public defenders. contrary to it. § 5. action under color of law is present because the entity was created by state law. Ct. See Monroe v. 22. an intertwined relationship. 24. See Lebron. Servs. for example. 20. Schwartz & John E. Monell v. Kirklin.S. Servs. Joint action can exist.S.SECTION 1983 LITIGATION must question whether there was joint action. 436 U. at 49–50.S. West.16 When a plaintiff sues a governmental entity. such as prison physicians.18 Because a governmental entity acts only through its agents or employees.. rev’d on other grounds. 436 U. Monroe .S.. 312. Polk County v. known as “Amtrak. 436 U. Department of Soc. 23. at 176. state employees or contractors who exercise professional judgment during the course of their employment act under color of law. if public defenders conspire with other state officials 16. state encouragement. 21. Dodson. governmental employees do not act under color of law. Monell v. whether they act in compliance with state law. 690–91 (1978).10. for a constitutional violation arising from its policy or custom. 18. however. at 974 (holding that the National Passenger Corporation.17 A corporation can be a governmental entity if the government created it to further its objectives and retains permanent control over it. Government employees act under color of law when performing their duties. 658. Martin A. 19 or exercise professional discretion. Id.S. In some circumstances. 658 (1978). 487 U. Although the assertion of independent judgment may appear to suggest autonomy. its employees also act under color of law. at 520 (3d ed. 115 S.S. See. Monell v. 20 Actions pursuant to state law easily reveal the link between the employee and the state. e. The only link between the public defenders and the state is money. 451 U.g. rev’d on other grounds. under most circumstances. Department of Soc. 365 U. 365 U.S. 1997). 1A Section 1983 Litigation: Claims & Defenses. Servs. Department of Soc.22 in furtherance of the goals of the state. Actions contrary to state law are also actions under color of law because employees are given the power to act on behalf of the government. 487 U. 6 .S. exercise this judgment on behalf of the state.

25 In this situation. Schwartz & John E. 1A Section 1983 Litigation: Claims & Defenses. or whether their actions were ones that typically fall within the duties of police officers. and public function. Two common situations easily suggest actions under color of law. 7 . When individuals do not work for the government. the under-color-of-law inquiry focuses on the nature of the connections between the private person and the state.S. at 325. a private 25. Tower v. the more likely that courts will find that they acted under color of law. Polk County. The Supreme Court has articulated four related standards to determine whether there is a sufficient connection between the individual and the government such that the action by the individual nevertheless constitutes action by the government: joint actions. such as hiring or firing employees. at 538–43 (3d ed. courts have considered the following ties to the state: whether the officers used the guns given to them by the state. who act under color of law while on duty. § 5. 467 U.S. because such actions would be taken on behalf of the state. 1997) (collecting cases). Joint Actions When the challenged action is committed by a person who does not work for the government. the link to the state is obvious. 919–20 (1984). 27.” The key issues focus on the assertion of power and the actual power given them under state law. Martin A. In determining whether the actions were under color of law. 914. whether the officers asserted authority given to them by their office. Governmental officials generally act under color of law because the state has given them the power to act. 27 The more the facts link the actions of the officers with the power given to them by the state. Kirklin. Glover.26 A more difficult under-color-of-law question arises when police officers. there is a link between the “private” public defender and other state officials. First. 26. The question becomes whether there is a sufficient link between the private individual and the state. the under-color-oflaw inquiry still focuses on the connection between the challenged action and the government. 451 U.CHAPTER 2: ACTION “UNDER COLOR OF LAW” during the course of a criminal prosecution. not in opposition to it. intertwined relationships. are technically “off-duty. Public defenders may also act under color of law when they perform administrative functions.14. state encouragement.

S. Since Burton. 724 (1961). but also in financing the public parking. 365 U. not only in serving the public. 28 (1980) (holding that private parties who corruptly conspired with a state judge acted “under color of law”). 722 (1961). 31 the Supreme Court held that a private restaurant in a public building was a state actor when it refused to allow service to African-Americans. 30. 8 . 29.S. the Court has found numerous relationships to be insufficient to establish governmental action: these cases suggest that the link between the private person and the government must be obvious. Adickes v. the Court found the threshold for state action present when there was a symbiotic relationship. Sparks. 365 U. because for purposes of the challenged action the person functions as if he or she were a full-time employee. Most of these cases require close scrutiny of the facts. Intertwined Relationships The Supreme Court has decided many cases involving the issue of when a private person is sufficiently intertwined with the state to have acted under color of law.”30 In each case. 152 (1970) (stating that action is “under color” if person is a “wilful participant in joint activity with the State or its agents”). These decisions reveal the Court’s movement toward limiting the circumstances under which a private person has become a state actor. Wilmington Parking Authority. 398 U. 144. When evaluating the nexus between the private person and the state. the Court’s holding is necessarily limited because the under-colorof-law issue is a fact-specific inquiry.. Burton v. 715. The private restaurant was an integral part of the public building. 449 U. In Burton v.28 Second. Wilmington Parking Auth. The National Collegiate Athletic Association was not a state actor when it 28.S.29 In the latter situation. under-color-of-law analysis is difficult to categorize because the Supreme Court has articulated the following “standard”: “Only by sifting the facts and weighing the circumstances can the non-obvious involvement of the State in private conduct be attributed its true significance. 31. The Court detailed the symbiotic relationship between the restaurant and the state parking garage. action under color of law is present..SECTION 1983 LITIGATION person who conspires with a state actor is a state actor for the purpose of the alleged conspiracy. even though the person is not a full-time employee of the state. 715. a private person who acts as an agent of the state acts under color of law. Dennis v.S. Kress & Co. 24.

CHAPTER 2: ACTION “UNDER COLOR OF LAW” persuaded the University of Nevada at Las Vegas to suspend its basketball coach. 39. 457 U. 922 (1982). the Supreme Court has required fewer ties to the state when determining whether a private person acted under color of law. These ties must in 32. Edmondson Oil Co. 1005 (1982). 407 U. 841 (1982). Yaretsky. 34. 163. 40.21. 991. in attaching the debtor’s property. at 939 n. it can signify state action. 830. 547 (1987).41 Determining whether a private person acted jointly or was intertwined with a state actor thus requires analysis of all the links between the private person and the state. San Francisco Arts & Athletics v. does not make the user a state actor.32 the United States Olympic Committee was not a governmental actor when it refused to allow a nonprofit organization to use the word “olympic”.38 when combined with the presence of state officials. 522. 37.S.S. 35. 177–79 (1972). 457 U. according to its interpretation of Medicaid regulations.” Id. racially discriminatory club that received a state liquor license was not a state actor. Lugar v. was not a governmental actor. alone. 179. 345. 457 U. 939–42 (1982). Jackson v.34 a private hospital that discharged patients early. 419 U. 36 and a private. 33. 38. 41. Kohn. Blum v. 436 U. NCAA v. 199 (1988) (the NCAA and the UNLV functioned more as adversaries rather than joint participants). the Supreme Court stated that its analysis was limited to prejudgment seizures of property. 164–66 (1978).S. however. Moose Lodge v.. Metropolitan Edison Co.S. 457 U. Id. Although mere use of a state statute. Id. the Court has required obvious ties to the state. Flagg Bros. Irvis.S. Tarkanian. 351 (1974).35 a utility that had a monopoly on electrical services was not a state entity. the creditor had further used state power. Edmondson Oil Co. In a footnote.. 488 U.S. United States Olympic Comm.S. Except for the prejudgment attachment process. 36. The Court explained that in this context the alleged “deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the state is responsible.33 a private school for troubled students that received more than 90% of its funds from the government was not a governmental actor. 922. 39 In Lugar v..S.40 the Supreme Court held that a creditor who used a state prejudgment statute had acted under color of law because. with help from the court clerk and sheriff. Rendell-Baker v. The assistance from state officials made the creditor a joint participant in state action.S.. at 937. Brooks. 483 U. v. 149. 9 .37 In the commercial litigation context.

Edmonson. they must suggest that the state has a significant measure of control over the private person’s conduct. 44. Jackson.” 45 In the landmark case. 46 the Supreme Court held that a company that owned a town was a state actor when it barred the distribution of religious literature. 48. Shelley. the Supreme Court significantly narrowed Marsh. 1. 614. 500 U. This doctrine has been used. at 508–09. to bar a court from enforcing a racially restrictive covenant43 and allowing peremptory challenges to be used in a discriminatory manner. 424 U. Because the use of judicial power in these contexts would sanction private discrimination. 49.S. the doctrine follows the contours of its stateaction inquiry. 508–09 (1946). 10 . Shelley v. State Encouragement The Supreme Court has determined that state action is present when judges are asked to enforce or authorize a discriminatory practice.S. at 627–28. Leesville Concrete Co.S. 507.. 22–23 (1948).S. 43. Hudgens v. 500 U. 334 U.44 In both these areas. 46.47 In later cases. Marsh v.S. 627–28 (1991). Id. 49 educating 42.SECTION 1983 LITIGATION some way indicate that the state has done more than fund the private person’s activities. at 22–23.. for example. 326 U.S. holding that the following activities are not public functions: operating a shopping mall.. 501. Edmonson v. the Court recognized that private discrimination would not be possible without judicial power. the Fourteenth Amendment prohibits judges from using their power in this manner. NLRB. 419 U.S. 520–21 (1976). 42 Although application of the state encouragement doctrine does not generally arise in § 1983 lawsuits. 353 (1974). Metropolitan Edison Co.48 providing utility services. 419 U. 334 U. e. Jackson v. 345. Alabama. Kraemer. Public Function State action may be present if the private person is performing a function that is “the exclusive prerogative of the State. 45. however.S. See. at 358–59. 47.g.

51 Most federal courts have narrowly interpreted the public function standard. Blum v. 1A Section 1983 Litigation: Claims & Defenses. 457 U. Kohn. and it ultimately invites judges to determine “where the governmental sphere ends and the private sphere begins. at 538–43 (3d ed. the question whether state action is present requires detailed analysis of the facts of each case. Schwartz & John E.52 Thus.S. but also assesses the significance of each tie and the cumulative effect of the ties. Edmonson. 457 U. 53. and mass transportation). Kirklin.S. Rendell-Baker v. 991 (1982).” 53 50. 1997) (courts have held that the following are not public functions: providing health care. Martin A. housing. at 620. legal services. 830. 500 U. Yaretsky. This inquiry is not easily answered by studying Supreme Court decisions.14. 840–43 (1982). 51. 52. The state-action inquiry not only explores the links between the private person and the state.CHAPTER 2: ACTION “UNDER COLOR OF LAW” troubled children. § 5.50 and supporting nursing-home care.S. 11 .


a violation of the dormant commerce clause is actionable under § 1983. and (3) claims under the procedural component of the due process clause that prohibits the deprivation of life. 56. 124 (1990) (quoting Daniels v.Chapter 3 Deprivation of Selected Constitutional Rights The due process clause of the Fourteenth Amendment encompasses three kinds of federal claims enforceable through 42 U. the violation is complete at the time of the challenged conduct and the § 1983 remedy is available regardless of remedies provided under state law.56 The following sections discuss some of the constitutional claims frequently litigated under § 1983. wrongful government actions. 331 (1986)). 55. liberty. 327. § 1983: (1) claims for the deprivation of certain specific rights denoted in the Bill of Rights and made applicable to the states through incorporation. 13 .C. Procedural Due Process Claims A claim based on a denial of procedural due process challenges the constitutional adequacy of state law procedural protections accompanying 54.S.S.55 In addition to these Fourteenth Amendment rights. (2) claims under the substantive component of the due process clause “that bars certain arbitrary.54 When a plaintiff asserts the violation of a right specifically identified in the Bill of Rights or protected under the substantive component of the due process clause. 498 U. or property without fair procedure. Dennis v. at 125. Zinermon v.S. Williams. Id. 450–51 (1991). ‘regardless of the fairness of the procedures used to implement them’”.S. Burch. 494 U. 439. 474 U. 113. Higgins.

g. of Educ. at 2300. 2293 (1995).. See. 445 U. of Educ. 59 property interests “are created from an independent source such as state law. Cleveland Bd. 693. despite the mandatory language of the applicable prison regulation. liberty. 541 (1985). McDonnell. Loudermill. A court encountering a procedural due process claim must first determine whether the plaintiff has been deprived of a life. 493–94 (1980) (due process clause confers on prisoners a liberty interest in not being involuntarily committed to a state mental hospital). 61 the Supreme Court held. 418 U. Brooks v. 62. See. that. 577 (1972)).g..g. DiFasi. 1997) (finding “exposure to the conditions of administrative custody for periods as long as 15 months ‘falls within the expected parameters of the sentence imposed [on him] by a court of law’”). a court must examine 14 .3d 46. v. . .”62 Under Sandin.S. mandatory language of a state prison regulation is still a necessary. Cleveland Bd. prerequisite for finding a liberty interest. 707 (3d Cir. 470 U. Harper. in the context of a procedural due process claim raised by an inmate placed in disciplinary segregation for thirty days. 112 F. but only the deprivation without the requisite process. 57 While liberty interests may be derived directly from the due process clause of the Constitution58 or be created by state law. or property. Washington v. Roth.. 221–22 (1990) (due process clause confers on prisoners a liberty interest in being free from involuntary administration of psychotropic drugs). 532. 564. e. 408 U.S. 557 (1974) (state law created a liberty interest in a “shortened prison sentence” that resulted from good time credits). Vaughn.SECTION 1983 LITIGATION an alleged deprivation of a constitutionally protected interest in life. 59. 712 (1976) (holding that “the interest in reputation asserted in this case is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law”).S. 63. Conner. . Griffin v.S. It is not the deprivation itself that is actionable. Davis. See.63 57. Jones.S. 115 S. Vitek v. 424 U. liberty. 49 (2d Cir. at 538 (citing Board of Regents v.3d 703. Id. 480. 539. 112 F. 210. but no longer a sufficient. imposes atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life. 494 U.S. e. e.. 61. Courts must look to the substance of the deprivation and assess the hardship imposed on the inmate relative to the ordinary incidents of prison life. Ct. or property interest that is constitutionally protected as a matter of substantive law. 60. a constitutionally protected liberty interest will generally be “limited to freedom from restraint which . . 1997) (“After Sandin. .”60 In Sandin v. 470 U. in order to determine whether a prisoner has a liberty interest in avoiding disciplinary confinement. Paul v. Wolff v.S. 58.

McDonnell.3d 1383. will henceforth qualify for constitutional liberty status”). 1159 (1st Cir. however.” 15 . e. Brewer. a liberty interest would still be recognized under Wolff. 65. 50 (5th Cir. 71 F. e. Bulger v. Scott. Before being deprived of good-time credits an inmate must be afforded: (1) 24hour advance written notice of the alleged violations. 66 Likewise. Whitford v. Whitford v. 539 (1974). See. 1995). cert. and (4) a written decision by the fact-finder stating the evidence relied upon and the reasons for the disciplinary action. 63 F. a court must examine the process that accompanies the deprivation of that protected interest and decide whether the procedural safeguards built into the process are the specific circumstances of the punishment.S. 408 U. at 563–71. 418 U. Hines v. 65 F. that “the mere opportunity to earn good-time credits” has been held not to “constitute a constitutionally cognizable liberty interest sufficient to trigger the protection of the Due Process Clause. In Young v. Note. Cornell v. Selsky. 111 F.3d 29. Gomez. 64 which held that a state may create a liberty interest on the part of inmates in the accumulation of good conduct time credits. 116 S. Ct. claims having their source in other than procedural due process. 1995) (suggesting that only deprivations “that clearly impinge on the duration of confinement.67 Once a protected interest has been identified. . 1997).”). 1995). such as First Amendment retaliatory transfer or retaliatory discipline cases.g. “a program employed by the State of Oklahoma to reduce the overcrowding of its prisons[. Dominique v. 736 (1996). 117 S. Ct. 533 (7th Cir. Id. 193–94 (5th Cir.” (citing cases)). Harper.] was sufficiently like parole that a person in the program was entitled to the procedural protections set forth in Morrissey v.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS Sandin did not disturb Wolff v. 1995).S. 1148. Rowland. Miller v.3d 527.g. Courts of appeals in other circuits have apparently come to the same conclusion. 1388 n. Pratt v. 65 F. 108 F. 1995) (holding no liberty interest in job assignment). Weld. Orellana v. 65 F. 66.3d 1156. United States Bureau of Prisons. Woods. 806–07 (9th Cir. 64. See. 1996) (finding no liberty interest in work release status). 1150 (1997). 63 F. 31–32 (5th Cir. denied. 269 (9th Cir. 9 (2d Cir. Kyle. Boglino. (2) the opportunity to be heard before an impartial decision maker.3d 192. before he could be removed from it. (1972).3d 7.” Luken v.3d 48. 471 .. 532 (7th Cir.3d 527. 67. are not affected by Sandin. .3d 265. 65 Thus.3d 802. 73 F. 1997) (“Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest. if disciplinary action would inevitably affect the duration of the inmate’s confinement. a unanimous Court held that Oklahoma’s Preparole Conditional Supervision Program. 1995) (observing that “[t]he holding in Sandin implies that states may grant prisoners liberty interests in being in the general population only if the conditions of confinement in segregation are significantly more restrictive than those in the general population”). 69 F. (3) the opportunity to call witnesses and present documentary evidence (when such presentation is consistent with institutional safety).. Boglino. Id. recognizing that district courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest. 1995) (per curiam).4 (8th Cir.

494 U. 69. The prison policy required the treatment decision to be made by a hearing committee consisting of a psychiatrist. however. 470 U. 319 (1976). and constitu- 68. the risk of an erroneous deprivation of such interest through the procedures used. the Government’s interest. 71. a state does not violate the due process clause of the Fourteenth Amendment by failing to provide notice and a hearing before suspending without pay a university police officer who had been arrested and charged with drug possession. Loudermill. at 335. 480. Gilbert v. Eldridge. liberty. Cleveland Bd. v. Id. Id. 70. 73. 542 (1985). finally. of Educ. Jones. The arrest and the filing of the charges by a third party. of additional or substitute procedural safeguards. Burch.69 In Mathews v. 445 U. Zinermon v. 424 U. 1813 (1997). at 229–33. Ct.S. 491 (1980). 494 U.S. due process requires some notice and an opportunity to be heard prior to the deprivation of a protected interest. 1807.S. 117 S. 16 . or property by state officials acting pursuant to established state procedure that failed to provide for predeprivation process in a situation where such process was possible. For example. the private interest that will be affected by the official action. and the probable value. practicable. 210 (1990).68 The issue of what procedural safeguards must accompany a state’s deprivation of a constitutionally protected interest is a matter of federal law. See. 113. 71 Generally. psychologist. a post-deprivation remedy is adequate. and. Vitek v.S. where a mentally ill state prisoner challenged the prison’s administration of antipsychotic drugs to him against his will without a judicial hearing to determine the appropriateness of such treatment. 73 Another type of due process claim arises when a plaintiff has been deprived of life. Harper. including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 126 (1990). if any. and the employer’s need to dismiss employees in a position of “great public trust. Washington v. 72.g. second.S. 532. Homar. The Court applied the Mathews balancing test and found the established procedure constitutionally sufficient.SECTION 1983 LITIGATION constitutionally adequate. and the prison facility’s associate superintendent.” strongly weigh against granting a predeprivation hearing. 70 the Court set forth three competing factors to be weighed in determining the sufficiency of procedural safeguards accompanying deprivations caused by the state: First.72 In certain cases. e..

531–33 (1984). 494 U. 79. 128 (1990). In holding that Burch’s complaint was sufficient to state a procedural due process claim. Id. the predeprivation process practicable. Ct. 435–36 (1982). Brown v. 113. Daniels v.”75 In contrast. 543 (1981)..” Mertik v.S. 1044 (1966). Logan v. 75.S. simply because they are the only remedies that the state could be expected to provide. 77.77 This doctrine represents a “special case of the general Mathews v. Hudson v. 80. was admitted to a state mental hospital as a “voluntary” patient under circumstances that clearly indicated he was incapable of informed consent.74 The erroneous deprivation must have been foreseeable. Ieyoub. Id. 78. 76.76 there is no procedural due process claim where the deprivation was unforeseeable. Burch. Eldridge analysis. denied. 1993). 113 (1990). 451 U.2d 1353. the Court stated: “Burch’s suit is neither an action 74. Burch. 1995) (finding that defendants’ conduct—delaying forfeiture proceeding for nearly three years—was authorized under state law where defendants had discretion to institute proceedings whenever they wanted). cert. at 129. 136 (1990). under the Parratt/Hudson doctrine. e. 1365 (6th Cir. Zinermon v. Taylor. Burch. the value of a predeprivation procedural safeguard for unforeseeable conduct is “negligible” in preventing the deprivation. 17 . In Daniels. overruled in part. Williams. Hot.. 68 F. Palmer. and where the state provided an adequate postdeprivation remedy. Compare.S.S. 536–37 (1st Cir. 1995) (concluding that officials’ failure to adhere to sex education policy was “random and unauthorized” within meaning of Parratt/Hudson doctrine). and the challenged conduct “authorized. 494 U.3d 525. Darrell Burch. unauthorized. 422..S.79 In addition to these two types of procedural due process claims is the Court’s fact-specific analysis in Zinermon v.”78 In short. 468 U. 474 U. Sexy & Safer Prods. Burch alleged that his five-month hospitalization deprived him of liberty without due process of law. 113. 455 U. Blalock. at 330–31. Zimmerman Brush Co. Zinermon has been interpreted as creating a category of procedural due process claims that falls outside “two clearly delineated categories: those involving a direct challenge to an established state procedure or those challenging random and unauthorized acts.80 In Zinermon the plaintiff. 712 (5th Cir. 494 U.S. random..CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS tionally required. in which postdeprivation tort remedies are all the process that is due.3d 709.g.S. 116 S. with Alexander v. Parratt v. 517. Zinermon v. 527. 327 (1986). 62 F. Inc. 983 F. the Court overruled Parratt to the extent that the case had held that a deprivation within the meaning of the Fourteenth Amendment due process clause could be effected by mere negligent conduct.

266. Glucksberg. . 395 (1989)). nor an action based only on state officials’ random and unauthorized violation of state laws. substantive due process protects individuals who have been subjected to excessive force in a nonseizure. 1715 (1998). 117 S. 503 U. and the right to bodily integrity.. 272 (1994) (plurality opinion). 1715 (1998) (stating that “[s]ubstantive due process analysis is therefore inappropriate . 2258. Ct. 1708.” 81 Substantive Due Process Claims The protections afforded by the substantive component of the due process clause have generally been limited to “matters relating to marriage. 490 U. But see BMW of N. 2267 (1997). 271(1994). uncircumscribed power to effect the deprivation at issue. He seeks to hold state officials accountable for their abuse of their broadly delegated. .S.S. .S. Albright v. Graham simply requires that if a constitutional claim is covered by a specific constitutional provision. the Supreme Court. Connor . 1708.”82 Noting that “the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended[. Ct. 115. only if [the] claim is ‘covered by’ the Fourth Amendment”) (discussed infra text accompanying notes 106–12. Ct. rather. City of Harker Heights. 266.S. 85.85 For example. the claim must be analyzed under the standard appropriate to that specific provision. 1219 (1997). 125 (1992). Ct.84 Whenever “an explicit textual source of constitutional protection” addresses particular behavior. 510 U. courts must rely on the more explicit source of protection to analyze the claim. Am. at 136. family. Inc. Connor. 118 S. . See Washington v. 84.SECTION 1983 LITIGATION challenging the facial adequacy of a State’s statutory procedures. 117 S. Burch is not simply attempting to blame the State for misconduct by its employees. 82. in dicta. —. procreation. 83. —. Lewis. 523 U. noting that: Graham v. Collins v. v.S. 510 U. 153–57). does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments. at 273 (citing Graham v. Albright.S. 494 U. such as the Fourth or Eighth Amendment. Ct. Gore. Albright v. Id. not under the ru- 18 . accord County of Sacramento v.86 81.]”83 the Supreme Court has in recent years expressed a reluctance to expand the scope of substantive due process protection. Zinermon. 118 S. Oliver.S. 86. 523 U. In United States v. nonprisoner context because neither the Fourth nor Eighth Amendment applies. 1589 (1996) (holding due process clause prohibits state from imposing “grossly excessive” punishment on tortfeasor).S. previously endorsed this view. Oliver. rather than the amorphous and open-ended concept of substantive due process. 510 U. Lanier. See County of Sacramento v. 386. 116 S. Lewis.

at 197.” a number of courts have taken the position that the plaintiff must have been involuntarily in the state’s custody when harmed. or (2) the state created or increased the danger to which the plaintiff was exposed.. 307 (1982) (substantive due process component of Fourteenth Amendment due process clause imposes duty on state to provide for safety and medical needs of involuntarily committed mental patients). A four-year-old boy had been repeatedly beaten by his father.”88 The Court concluded that “[a]s a general matter .g. . Estelle v. See.S.g. Id. 97 (1976) (state has constitutional duty to provide adequate medical care to incarcerated prisoners).S. liberty. where the court notes: Recurring throughout [the] cases that we have decided since DeShaney is the iteration of the principle that if the person claiming the right of state protection is voluntarily within the care or custody of a state agency. the bric of substantive due process. at 195. 90 Plaintiffs who have successfully survived the DeShaney analysis.”89 In contrast. 91.S. 89. outside the strict confines of incarceration or involuntary institutionalization.3d 1297. 1995) (en banc). 44 F.91 In DeShaney. at 192–93. and property of its citizens against invasion by private actors. e. 189 (1989). but failed to protect him from his father’s last beating. 90. Id. Id. 1304 (5th Cir. 88. 429 U. Walton v. Id. 87 a majority of the Supreme Court held that nothing in the due process clause of the Fourteenth Amendment creates an affirmative duty on the part of the state to “protect the life. The county child-protection agency had monitored Joshua’s case through social workers.. 489 U. We thus conclude 19 . a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause. Winnebago County Department of Social Services. e. Youngberg v. he has no substantive due process right to the state’s protection from harm inflicted by third party nonstate actors. Many readers are no doubt familiar with the tragic facts of DeShaney. 457 U. Alexander. Functional Custody Where the affirmative duty is grounded in the concept of “custody. See.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS DeShaney and Affirmative Duty Cases In DeShaney v. which left the child permanently brain damaged. . 87. at 1228 n. Gamble. Romeo. DeShaney also recognized an affirmative “duty to protect” when the state incarcerates or involuntarily institutionalizes a person. have asserted substantive due process claims arising in one of two contexts: (1) the plaintiff was in the “functional custody” of the state when harmed.7.

Doe v. But see D. v. Hillsboro Indep.SECTION 1983 LITIGATION Court acknowledged that the situation where the state removes a child from “free society” and places him or her in a foster home might be “sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. and the failure to provide that degree of supervision and care results in injury to the child outside of the home. 1997) (“The Supreme Court’s express rationale in DeShaney for recognizing a constitutional duty does not match the circumstances of a simple criminal arrest.”).3d 1214. 1995) (finding no “substantive due process right is implicated where a public agency is awarded legal custody of a child. See. the state has no duty arising under the Constitution to protect its citizens against harm by private actors. 1997) (holding “that the state’s affirmative obligation to render services to an individual depends not on whether the state has legal custody of that person. 293 (8th Cir. 1995) (noting that “when a DCFS caseworker places a child in a home knowing that his caretaker cannot provide reasonable supervision. 113 F.. Arkansas Dep’t of Human Servs. we cannot say that a right to affirmative state protection for children placed in foster care was clearly established at the time of Keena’s death. for the caseworker to be held liable for a deprivation of liberty”).2d 289. 92. e. Dist.3d 731. 989 F. 1993) (recognizing that “[c]ases from this and other circuits clearly demonstrate that imprisonment is not the only custodial relationship in which the state must safeguard an individual’s civil rights”). 1997) (“Given the state of this circuit’s law on the issue and the absence of controlling Supreme Court authority. 67 F.W.3d 1412. 737 (4th Cir. 1175 (7th Cir. 1218 (11th Cir..” 92 The lower federal courts that have ruled on the issue since DeShaney have uniformly recognized a constitutional right to protection from unnecessary harm on the part of foster children involuntarily placed by the state in a foster care situation. Wooten v. 699–701 (11th Cir. Camp v. . At least one circuit has suggested that the concept of “in custody” for DeShaney purposes of triggering an affirmative duty to protect entails more than a “simple criminal arrest. . by virtue of compulsory attendance laws.3d 696.S. 105 F. 113 F. are in the “functional custody” of the state during school hours.” See Estate of Stevens v. but on whether the state has physically confined or restrained the person”). 93.. See.g. Chambliss. 49 F. Rogers.3d 1169.g.”). Sch.94 These courts have held that that DeShaney stands for the proposition that the state creates a “special relationship” with a person only when the person is involuntarily taken into state custody and held against his will through the affirmative power of the state. White v. e. 1415 (5th Cir. but does not control that child’s physical custody except to arrange court-ordered visitation with the non-custodial parent”). City of Green Bay. otherwise. 93 The majority of courts have rejected arguments that public schoolchildren. Campbell. This rationale on its face requires more than a person riding in the back seat of an unlocked police car for a few minutes. 1297 (7th Cir. Gregory. at 201 n. it might be appropriate.9. 112 F. .. DeShaney. 489 U. depending upon the facts culminating in the injury. 94. Norfleet v.3d 1286. 1997) (en banc) (joining “every circuit court that has considered the issue in holding that com- 20 .

suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect. 103 F. Metropolitan Gov’t of Nashville. Lewellen v. Wallace v.. See. Lovin. 32 F. 1997) (“[P]rison guards ordered to stay at their posts are not in the kind of custodial setting required to create a special relationship for 14th Amendment substantive due process purposes. 646. 44 F. Doe v. Liebson v. . New Mexico Corrections Dep’t. Dist. 429 (7th Cir.S. Claiborne County.” see DeShaney . Ingraham v. 930 F. of course. Acton. entitled to claim from the state a constitutional duty of protection from harm at the hands of private parties”). 1996) (librarian assigned to provide library services to inmates housed in maximum security unit of the New Mexico State Penitentiary was not in state’s custody or held against her will. . DeShaney does not apply where the alleged harm is attributed to a state actor. 34 F. does not create the custodial relationship envisioned by DeShaney”). 97. Wright.2d 720. e. e. See. 430 U. Podlesny. .” (citing cases)).3d 495. 882 F. e. Schoolchildren have a liberty interest in their bodily integrity that is protected by the due process clause against deprivation by the state.. Dawson v. 1995) (en banc) (holding that.S. 95. not a private actor). 276 (10th Cir. Milwaukee.3d 427.2d 1283. we have acknowledged that for many purposes “school authorities ac[t] in loco parentis.. 96.”). . 510 (6th Cir. Nabozny v. 73 F.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS the state does not have a duty to protect students from harm inflicted by fellow students or other private actors. Stoneking v. 1989) (Stoneking II) (opinion on remand) (recognizing that the situation in that case was very different from DeShaney because the injury—sexual molestation—resulted from the conduct of a state employee. Wright v. with the power and indeed the duty to “inculcate the habits and manners of civility.3d 274. child’s “status as a resident student [did not place] him within the narrow class of persons . every federal circuit court of appeal to address the question of whether compulsory school attendance laws create the necessary custodial relationship between school and student to give rise to a constitutional duty to protect students from harm by nonstate actors has rejected the existence of any such duty. 724 (3d Cir.3d 458–59 (7th Cir. 1285 (7th Cir. 1991) (presence in publicly subsidized housing is not functional equivalent of being “in custody”). 115 F. where attendance at school was voluntary and there was a right to leave at will. Bradford Area Sch. 1994) (stating that “To date.95 Courts have likewise rejected the notion that individuals in public housing96 or employees of a public entity 97 are in the “functional custody” of the state and thus owed an afpulsory school attendance . Walton v. Adkins..S. . 655 (1995): While we do not.3d 21 . [cite omitted]. Alexander. cert. 1996) (concluding that “local school administrations have no affirmative constitutional duty to protect students from the private actions of third parties while they attend school”).3d 1297. denied. 673–74 (1977). 1044 (1990).g. 493 U. 651.3d 538. 540 (11th Cir. .g. It is worth noting the following dicta in Justice Scalia’s opinion in Vernonia School District 47J v. generally a teacher or other school official. Therefore.” [cite omitted].” [cite omitted]. See. 1996) (holding that school’s “in loco parentis status or a state’s compulsory attendance laws do not sufficiently ‘restrain’ students to raise a school’s common-law obligation to the rank of a constitutional duty”). 515 U. 92 F. 1305 (5th Cir.g. employment relationship was “completely voluntary”).

Pinder v.. the Supreme Court’s decision in Collins v.. 503 U.”).101 if the state creates the danger confronting the individual. at 130. 986 F. . it must cut off all avenues of aid without providing a reasonable alternative.”). . 1177 (4th Cir. 963 (1995). Servs. DeShaney v. Winnebago County Dep’t of Soc.”). 1997) (“To recover under this [state-created danger] theory. Gardner. .S.2d 1122. . denied. 1177 (7th Cir. . 100. 1993) (holding that “plaintiffs . Reed v. it may then have a corresponding duty to protect. Only then may a constitutional injury have occurred. Johnson. . cert. 201 (1989). City of New York. 102. 1995) (en banc) (observing that “[w]hen the state itself creates the dangerous situation that resulted in a victim’s injury. 345 (6th Cir. 489 U. 189. See.g. 84 F. 1995) (en banc) (“By requiring a custodial context as the condition for an affirmative duty. 1996) (noting that “[i]n addition to the ‘special relationship’ doctrine. 98. e. 1126–27 (7th Cir. we have held that state officials can be liable for the acts of third parties where those officials ‘created the danger’ that caused the harm”).SECTION 1983 LITIGATION firmative duty of protection.”99 State-Created Danger In concluding that the state had not deprived Joshua DeShaney of any constitutionally protected rights. 1175 (4th Cir. at 200 (“The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him .100 While DeShaney makes clear that the state’s mere awareness of a risk of harm to an individual will not suffice to impose an affirmative duty to provide protection. 985 F. 98 the Supreme Court unanimously affirmed the view that “the Due Process Clause does not impose an independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace. City of Harker Heights. Id. .3d 1169. the estate must demonstrate that the state greatly increased the danger to Stevens while constricting access to self-help. Snow. . 54 F.S. 99. Id. 1994) (workman accidentally injured on school construction project has no substantive due process claim). 99 22 . See also Pinder v. DeShaney rejected the idea that such a duty can arise solely from an official’s awareness of a specific risk or from promises of aid. Ct.”). the absence of a custodial relationship may not be dispositive”).3d 1169. 101. Johnson. In Collins v.2d 94. Dwares v. . 105 F. Seamons v. or substantially contributes to the creation of. 115 S.3d 1226 (10th Cir. 54 F. 115 (1992). City of Green Bay. may state claims for civil rights violations if they allege state action that creates.3d 1169. a danger or renders citizens more vulnerable to a danger than they otherwise would have been. Estate of Stevens v. . the Supreme Court suggested that the result might have been different if the state had played a role in creating the dangers to which Joshua was exposed or had increased his vulnerability to these dangers.102 Moreover.

Ct. “[T]he relationship requirement . 498 U. 1990) (noting “[DeShaney] analysis establishes the possibility that a constitutional duty to protect an individual against private violence may exist in a noncustodial setting if the state has taken affirmative action which increases the individual’s danger of or vulnerability to. 1996) (adopting the ‘state-created danger’ theory as a “viable mechanism for establishing a constitutional violation under 42 U. Ferguson.g. But see Mitchell v. 104. (1992). 115 (1992). . . 120–21 (9th Cir. resulting in rape of plaintiff). cert. denied. 503 U. 1209 n. 938 (1990). 1989) (holding that where the defendants had put the plaintiff. cert. L. the plaintiff did not make out a state-created danger claim where “the school neither placed Mitchell in a dangerous location nor placed the assailants in the 23 . 503 U. e. and left plaintiff stranded in a high-crime area at 2:30 a.3d 1199. denied. 95 F. . . 590 (9th Cir. 494 U. likely to assault plaintiff if alone with her. then “under the special danger approach as well as the special relationship approach . 1066 (1990).22 (3d Cir.S. I). yet defendants intentionally assigned inmate to work alone with plaintiff in clinic).2d 348. such violence beyond the level it would have been at absent state action”).S. 1997) (per curiam) (noting that “ Cornelius may not have survived Collins v. Bd. . contemplates some contact such that the plaintiff was a foreseeable victim of a defendant’s acts in a tort sense”).D. 880 F.2d 583. Grubbs (L. 1992) (concluding that plaintiff. in a “unique position of danger” by causing inmates who were inadequately supervised to be present in the town hall. 911 F. . v. Ga. 1563. where defendants knew inmate was a violent sex offender. with Bogle v. a town clerk. § 1983. 1989) (concluding an affirmative duty to protect was owed plaintiff by a police officer who arrested the driver of the car in which plaintiff was a passenger. See.W. Duval County Sch.103 holding that there is no substantive due process right to a safe work environment.. Tedder. at 130. Ostrander. 1993) (finding DeShaney not controlling where plaintiff alleged that defendantofficers had made demonstrators more vulnerable to assaults). 879 F. a registered nurse. Freeman v. City of Warner Robins. Town of Highland Lake.105 (2d Cir.104 has not precluded the imposition of constitutional liability on state officials who deliberately or intentionally place public employees in a dangerous situation without adequate protection. 1570 (M. 953 F. the defendants owed [the plaintiff] a duty to protect her from the harm they created”). Cornelius v. City of Harker Heights. 1201.W.3d 837.3 (11th Cir. Wood v.S.. 113 S. where the Supreme Court held that a voluntary employment relationship does not impose a constitutional duty on government employers to provide a reasonably safe work environment”—but holding that even if Cornelius has not been undermined.. 1997) (holding that “plaintiff was not deprived of her constitutional rights under the Fourteenth Amendment when police officers released her from custody in an impaired state” and plaintiff was subsequently raped by a third party).S. 105.” where severely inebriated woman was stopped by police and then allowed to proceed home alone. denied. stated a constitutional claim against defendant correctional officers.2d 119. 103. 55 (8th Cir. Compare Kneipp v. 2442 (1993). cert. Id.m. Supp.2d 52.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS City of Harker Heights. 839 n. 107 F. 115 .C. 974 F. 359 (11th Cir. impounded the vehicle.S.

Ct. including history and precedent. largely unplace where Mitchell was. He stated that when a plaintiff challenges a “specific act of a governmental officer. 474 U. 344. 1716 (1998). at 1718 (citing Estelle v. 1708. Justices Kennedy and O’Connor. see also Collins v. 327.S. at 1717. Gamble. at 840. and Breyer.. are the controlling principle. Justice Souter authored an opinion joined by five Justices: Chief Justice Rehnquist and Justices O’Connor. Daniels v. Davidson v. 110. Id. 109. 104 (1976)). 523 U. 333 (1986).S.” Id. Two factors aid courts in considering whether conduct is shocking: whether there was time for reflection and whether there were competing governmental needs: [L]iability for deliberate indifference to inmate [medical] welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments. with “intent to harm the suspects physically or to worsen their legal plight. Kennedy. Id. id. J.S.S.S.” Id. regardless of whether the State’s action is legislative or executive in character.” rather than legislation.). 429 U. concurring). 107.S. 111. County of Sacramento v. 474 U. —. 109 the Court explained that determining shocking conduct depends on the type of substantive due process claim asserted. in a concurring opinion.”111 Thus. upon the chance for repeated reflection. —. City of Harker Heights. 503 U. Id. stated that “the reasons the Court gives in support of its judgment go far toward establishing that objective considerations. 118 S. 97. Lewis. that is. 106. County of Sacramento. at 1717. at 1716. Ct.107 negligent action is clearly insufficient to establish a violation of substantive due process. 24 . 118 S. the plaintiff must show that the act “shocks the conscience” to establish a substantive due process violation. at 1722 (Kennedy. their actions are shocking only if they acted with malice. 108. Ct. Cannon. Williams. For example. 1708 (1998). their actions “shock the conscience”.”106 For an action to be arbitrary it must “shock the conscience”. when prison officials are deliberately indifferent to a pretrial detainee’s serious medical needs. 118 S. however.110 but when police officers engage in a high-speed pursuit that results in the death of one of the suspected offenders. 347 (1986). at 1720.108 In County of Sacramento v. Lewis. Ginsburg. 115.SECTION 1983 LITIGATION State of Mind The substantive due process component of the Fourteenth Amendment protects against “arbitrary action. 130 (1992) (holding that city’s alleged failure to train or warn sanitation department employees was not arbitrary). 523 U. a police officer’s deliberate indifference to the risks arising from a high-speed pursuit is insufficient to establish individual liability.

Yvonne L.S. 118. and prisoners. Many courts apply a “professional judgment” standard to substantive due process claims raised by involuntarily placed foster children. 386.”115 Use of Force by Governmental Officials Governmental officials may be subject to § 1983 lawsuits when they use force to control suspects. amend. even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates [the substantive component of the Fourteenth 112 Amendment]. 118 S. 1992) (adopting professional judgment standard. In the context of a high-speed pursuit. .S. e. 523 U. 115. .”).117 and the Eighth Amendment118 applies to prisoners and prohibits cruel and 112.g.S. accord County of Sacramento v. 307 (1982). Graham v.S. . When such extended opportunities to do better are teamed with protracted failure even to care. But when unforeseen circumstances demand an officer’s instant judgment. officers must act quickly to weigh the competing concerns of effective law enforcement against the risks of a pursuit. Id. 116. 457 U. 117. .2d 883. See. 1708. U. 114. IV (stating “[the] right of the people to be secure in their persons . Const. at 323. . seizures . The source of the right for claims against these officials depends on the plaintiff’s status at the time officials used force: the Fourth Amendment116 applies to “seized” individuals and prohibits the use of unreasonable force. VIII (stating “cruel and unusual punishments [shall not be] inflicted”). 490 U. practice.114 holding that state officials who commit someone involuntarily (a mentally handicapped patient) are liable only if their decision was “such a substantial departure from accepted professional judgment. Id. Const. 113. or standards as to demonstrate that the person responsible actually did not base the decision on such judgment. Liability attaches only when officers act maliciously.S. 893–94 (10th Cir.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS complicated by the pulls of competing obligations. . 959 F. Romeo. rather than deliberate indifference.. Connor. against unreasonable . 25 . indifference is truly shocking. —.113 The Supreme Court articulated this standard in Youngberg v. . v. amend.. 1715 (1998). Lewis. U. New Mexico Dep’t of Human Servs. 394–95 (1989). in foster care setting). pretrial detainees. Ct.

Ct. at 395. 120. .123 In contrast. 1163-64 (4th Cir. 999 (1992). . 126.SECTION 1983 LITIGATION unusual punishment. Graham.g.” 126 As a result.S. Graham. 475 U. 266. . 490 U. § 1 (stating “[n]o state shall . 112 S. . liberty .S. 118 S.S. without due process of law . 117 S. the claim arises only under the Fourth Amendment as incorporated by the due process clause. 1219. Riley v. . Ct.S. 386. Ct. County of Sacramento. and the use-of-force claim may be actionable only under the substantive due process component of the Fourteenth Amendment. For example.S. some lower courts question whether the Fourth Amendment applies to force claims asserted by pretrial detainees. U. McMillian. 490 U. 1228 n. 127 119. if officers engage in a highspeed pursuit and do not “seize” an injured person. Albright v.”121 A substantive due process claim challenging the use of force may lie only if neither the Fourth 122 nor the Eighth Amendment applies.”). state officials are subject to § 1983 lawsuits under these amendments. .3d 1159. . at 395 n. “Our decisions have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against deliberate use of excessive force beyond the point at which arrest ends and pretrial detention begins. XIV. Graham v. 124. . 490 U. Ct. Lanier. Dorton. e. 312. deprive any person of life. 115 F.S. . Connor. 122. Hudson v. 125. Albers. 1997) (detailing the 26 . See infra text accompanying notes 130 & 152–57. the Fourth Amendment would not apply. The Supreme Court has stated. at 1715.. at 1715. Whitley v.124 Although the “Due Process Clause protects a pretrial detainee from use of force that amounts to punishment. 321 (1986).119 Because the Fourth and Eighth Amendment rights have been incorporated by the due process clause of the Fourteenth Amendment. 121. without due process of law. use-of-force claims are actionable if they constitute a deprivation of “liberty .120 Under the substantive due process component of the Fourteenth Amendment.10. amend. 995. 273 (1994) (plurality opinion). See. if the use of force constituted a “seizure” within the meaning of the Fourth Amendment. See also United States v. County of Sacramento. Oliver. Id. 123. Const. 395 (1989).”125 it is unclear if a plaintiff can be both a pretrial detainee and a suspect “seized” within the meaning of the Fourth Amendment. 127. 510 U. 118 S. The Supreme Court has described the standard for measuring force under the Fourth and Eighth Amendments.7 (1997).

In sum.S. might be actionable under the Fourteenth Amendment.. Whether a “reasonable person would have believed that he was not free to leave” and the person in fact submitted to the assertion of authority. 392 U. however. 490 U. California v. 554 (1980) (opinion for Justices Stewart and Rehnquist). I. 544.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS Unreasonable Force Claims Under the Fourth Amendment Whether police officers have violated the Fourth Amendment during an investigation or arrest depends upon the resolution of two issues: (1) In using force. has in some way restrained the liberty of a citizen. Hodari D.. then the use of force is not actionable under the Fourth Amendment. 621. 523 U. and Ninth Circuits do extend Fourth Amendment coverage to the period the suspect remains with the arresting officers .S. 628 (1991). concurring) (stating that a person had been “seized” within meaning of Fourth Amendment by his arrest and conditional release after posting bail). Seventh. J. 1708. 266. If no seizure occurred. we agree with the Fifth. Mendenhall. Ct. and Eleventh Circuits that the Fourth Amendment does not embrace a theory of ‘continuing seizure’ and does not extend to the alleged mistreatment of arrestees or pretrial detainees in custody”). then the plaintiff has stated a claim under the Fourth Amendment. 130. 132. 499 U. 446 U. Whether “the officer. 128. 510 U.S. See generally County of Sacramento v. 210. 1715 (1998) (stating that if a police officer’s use of force during a high-speed pursuit did not result in a seizure. . Terry v.S. 215 (1984). at 395–96. 131. Id. Oliver. see generally Albright v. 118 S.130 Resolving these two issues requires scrutiny of the Supreme Court’s definition of a “seizure” and of “objectively unreasonable” force. substantive due process analysis is appropriate). The Supreme Court has articulated the following three definitions for determining when officers have seized an individual: 1.S. Ohio.”131 2. 279 (1994) (Ginsburg. did officials “seize” the suspect within the meaning of the Fourth Amendment? 128 and (2) Was the force objectively unreasonable? 129 If officers both seized the plaintiff and used objectively unreasonable force. 27 . by means of physical force or show of authority. Sixth. 129. 466 U. Delgado.S.S.N. 1.S. the force. . —. Graham.”133 conflict in the circuits: “The Second. see also United States v. .16 (1968). Lewis. 19 n. v. 132 3. Whether there was “a governmental termination of freedom of movement through means intentionally applied.

597 (1989) (use of roadblock to stop fleeing motorist constituted seizure.g.2d 292 (7th Cir. 1992) (holding that a nine-year-old child stated an unreasonable force claim under the Fourth Amendment by alleging that an officer held a gun to his head while executing a search warrant.SECTION 1983 LITIGATION These definitions focus on the assertion of authority and the use of physical force. the third definition. cert.134 Determining whether officers used unreasonable force when they seized a suspect is a fact-specific inquiry using the Fourth Amendment standard of reasonableness. concurring) (psychological harm can constitute “cruel and unusual punishment under the Eighth Amendment”) (citing Wisniewski v. see generally Hudson v. the officer used physical force. 1004 (1992) (Blackmun. 1 (1985). Ct. even though he posed no threat to the officer and did not attempt to flee).) (placing gun in prisoner’s mouth and threatening to shoot stated a claim under the Eighth Amendment). Also actionable are claims involving psychological injury. e. 966 F. Kennard. denied.. the shooting was not justified under the standard articulated by the Court: “[I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm. J. 135. whether the act was intentional is an objective inquiry—the question is whether a reasonable officer would have believed that the means used would have caused the suspect to stop).S. 1277 (5th Cir. 111 S. In Tennessee v. When the suspect did not stop.S. 309 (1990)). Brower v. 112 S. Under these circumstances. 118 S. 136 A police officer. When officers use physical force. 995. McDonald v. See. deadly force may be used if necessary to prevent es133. the first and third definitions of seizure are applicable. The first definition simply states that the use of physical force can effectuate a seizure. 28 . McMillian. 136. 471 U. Id. Haskins. at 11–12. 489 U. Ct.2d 1276. Two Supreme Court decisions assessed the reasonableness of different types of force. Most excessive force claims under the Fourth Amendment involve the infliction of physical injury. commanded the fleeing suspect to stop. 593. County of Sacramento. but no seizure occurred because the force was not intentional.” Thus. the police officer shot and killed him. requires that the application of force be “intentional. County of Inyo. if a police officer accidentally hits someone with his vehicle. articulated twenty-one years later.. 901 F. at 1715 (stating that no seizure occurred when officer accidentally hit passenger of pursued motorcyclist). Garner. Ct. who had reason to believe that a suspect had just burglarized a home.135 the Court held that the use of deadly force was objectively unreasonable. 134.

29 . 386 (1989).CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS cape. The Eighth Amendment standard is “whether force was applied in a good-faith effort to maintain or restore discipline. at 399 n. 143. at 999. Id. 141. 145. 142. 140. (2) “whether the suspect poses an immediate threat to the safety of the officers or others”. Whitley. 139 the Supreme Court held that three factors were relevant in determining the reasonableness of force: (1) “the severity of the crime at issue”. it is the central inquiry under the Eighth Amendment for a claim alleging the use of excessive force.S. 995. 138 Assessing danger is also important in evaluating the use of nondeadly force. Id. the Supreme Court held that this standard applies to the use of force to control prisoners. Hudson v. Reasonableness requires a balancing of interests. 144. In Graham v. 312. 999 (1992). Plaintiffs do not have to prove that officers acted in bad faith. however. Id. 475 U. Whitley v. would be admissible to challenge the officers’ credibility. evaluating the circumstances present at the time the officers act.”140 In articulating these factors. Albers. Hudson. Ct. at 397. at 11. 112 S. 475 U.”144 In two decisions. and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.S. where feasible.146 137. and if. some warning has been given.143 Malicious Force Claims Under the Eighth Amendment Although malice is not an element of a Fourth Amendment claim. 321 (1986).142 such evidence. or maliciously and sadistically to cause harm.12. and allowing the officers some deference because they often have to make “split-second judgments. whether to diffuse a riot145 or to impose discipline. Id. 139. McMillian. 138. 112 S.S. 490 U. Ct.”141 This reasonableness inquiry is an objective one. 146. at 396. the suspect posed no danger to the officer or the community (burglary does not involve the infliction of “serious physical harm”). Id. the Court did not state that these were the only factors relevant to the reasonableness inquiry. at 321.”137 In short. Connor. Id.

Lewis153 that to violate the substantive due process component of the Fourteenth Amendment. the Court also expressed a need to defer to the judgment of prison officials. 999 (1992). 1708 (1998).” 154 Officials commit shocking actions when they use force with the intent to 147.10 (1989). (4) “the extent of the threat to the safety of staff and inmates”. 312 (1986).S. 112 S. McMillian. 97. 151. for Fourteenth Amendment force claims. 490 U. 395 n. Thus.” 151 The extent of an injury thus became just one factor in determining whether officials acted with malice. Graham v. Excessive Force Claims Under the Fourteenth Amendment Although the Supreme Court has not elaborated on the standard for useof-force claims under the Fourteenth Amendment. The Court interpreted the third factor as not requiring a “significant” injury. 475 U. Connor. the Court held in County of Sacramento v. 154. (quoting Whitley. Ct. at 1000. an official’s actions must “shock the conscience.S.”148 In articulating the standard. 104 (1976))).S. Albers. Gamble. Id. Id. 149.150 However. 118 S. at 321.S. Id. 386. 172–73 (1952)). 30 . (3) “the extent of injury inflicted”. 165. California. 148. 995. —. 342 U. 150. 152. 429 U. (2) “the relationship between the need and the amount of force that was used”. 475 U. 523 U.SECTION 1983 LITIGATION In Whitley v. at 327 (quoting Estelle v. The Court later applied this standard in Hudson v.S. however. it has stated that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment. Ct. and (5) “any efforts made to temper the severity of a forceful response. plaintiffs need to allege something more than a de minimus injury unless the force used was “repugnant to the conscience of mankind. 149 where officials did not face the exigencies of a prison riot.147 the Supreme Court held that five factors were relevant in determining whether officers acted maliciously when they used force to quell a prison riot: (1) the need for force.S. It has not done so.”152 More recently. 153. at 1717 (citing Rochin v. the Supreme Court has clearly articulated factors for determining malice under the Eighth Amendment and unreasonable force under the Fourth Amendment. Id.

Some courts had also required the challenged governmental conduct to be “egregious.S. It effectuates prison management and prisoner rehabilitative goals.4. . 510 U. . See. . Habeas Corpus Checklist (West Group 1998). 161 In Albright.155 The Court derived this malice standard by likening a police officer’s actions during a high-speed pursuit to a prison guard’s actions during a riot:156 both must act quickly with little time for reflection. but see generally Sandin v. (3) with malice. e.159 In these decisions. Id. Valencia v. at least one lower court prior to County of Sacramento had determined that malice was the appropriate standard. 981 F. 114 S. Oliver. 31 .CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS harm a person. . Id. 160. 115 S. 1A Section 1983 Litigation: Claims & Defenses.). Id. denied.2d 1440 (5th Cir. 2372 (1994).20. 157. many lower courts used the common-law elements of a malicious prosecution tort to establish a constitutional violation of substantive due process. Prior to these decisions. Such a claim may arise under the Fourth Amendment. at 270 n. see Ira Robbins. 113 S. (2) without probable cause. 2998 (1993). Schwartz & John E. Conner. Ct. and (4) termination in favor of the criminal defendant.”). Humphrey158 and Albright v. the Court held 155. serves different aims than those found invalid [for pretrial detainees]. 159. 2293. Kirklin. . at 1711. Ct. 266 (1994). 161. Martin A.157 Malicious Prosecution Claims Under the Fourth Amendment Determining whether plaintiffs have alleged a malicious prosecution claim under the Fourth Amendment is difficult because the standard for evaluating these claims is unclear after the Supreme Court’s decisions in Heck v. Wiggins. the Court held that substantive due process was not the basis for a constitutional claim of malicious prosecution. For a thorough treatment of the relationship between habeas corpus relief and § 1983 relief. the Court merely declared what is not a malicious prosecution claim. Although the Court did not state that the malice standard applies to force claims raised by pretrial detainees. at 315 n. 156. 2300 (1995) (distinguishing claims raised by prisoners from claims raised by detainees: “The punishment of incarcerated prisoners .160 The common-law elements included (1) institution of a criminal proceeding. cert. Ct.” Id.699 (3d ed. In Heck.. 158. at 1720.g. 2364. § 3. 1997).

. at 2372.S. Heck. Id. 163 I n Heck.166 Albright. Balisok. § 1983.S. or called into question by a federal court’s issuance of a writ of habeas corpus.S. The Court held that Albright’s malicious prosecution claim was not actionable under the substantive due process component of the Fourteenth Amendment.C.S. Daniels v. the Court limited potential § 1983 actions by holding that only when a damage action does not undermine the state’s authority to confine prisoners may the malicious prosecution action lie under § 1983. 114 S.C. is not cognizable under § 1983 because it “necessarily [implies] the invalidity of the punishment imposed”). not 42 U. at 2373. 411 U. 165. . for which he sought declaratory relief and money damages. 163. but suggested that it may be actionable under the Fourth Amendment. surrendered custody and complied with a limit on his traveling outside the state. § 1983 because he failed to establish that prior criminal proceedings had been terminated in his favor. 331 (1986). expunged by executive order. .C. a judge determined that the alleged selling of a powder that looked like cocaine was not a state crime. 1584. § 2254. See generally Edwards v.S. Williams. in Albright. the discussion of substantive due proc- 162. the Court had derived standards for examining constitutional claims under § 1983 from constitutional amendments.SECTION 1983 LITIGATION that the prisoner did not have a cognizable malicious prosecution claim under 42 U. Prior to Heck. e. who was the subject of an arrest warrant for selling drugs. . Ct. 275 (1994) (plurality opinion). Interestingly.162 It had also held that prisoners could challenge their confinement only under 29 U. 327. 32 . 266. 166. 117 S. 475. Rodriguez.S. Ct. Both cases merit scrutiny because Heck surprisingly looked to the common law to determine whether there was an actionable claim and because Albright produced six different views as to how to examine the facts of an alleged malicious prosecution claim. See. At a preliminary hearing.g. not from common law. 164. the Court held that a claim of malicious prosecution is not actionable under the substantive due process component of the Fourteenth Amendment.” 165 Similarly. 488–90 (1973). declared invalid by a state tribunal authorized to make such determination. noting that no intrusion on a state’s authority occurs when “the conviction or sentence has been reversed on direct appeal. 164 The Court used § 2254 as an analogy. 1589 (1997) (holding that prisoner’s alleged procedural due process violation. 474 U. Preiser v. 510 U.

concurring). and Ginsburg) rejected substantive due process as a base for this claim and interpreted the record as not alleging a violation of procedural due process or of a Fourth Amendment right.” 167 Some courts had held that the constitutional claim was identical to the common-law claim. 172. joined by Justice Clarence Thomas. at 270 n. Kennedy. at 285 (Kennedy. also rejected substantive due process as a basis for this suit. Rehnquist (joined by Justices O’Connor. in her concurring opinion. The plurality opinion by Chief Justice William H. Id..4. She found that the restraint imposed upon Albright constituted a Fourth Amendment seizure. 171. at 274. Justice Rehnquist noted that the lower courts had differing views as to what a plaintiff must allege to state a constitutional claim for “malicious prosecution. 168 Justice Rehnquist also stated that the Fourth Amendment applied to “pretrial deprivations of liberty. J. Justice Antonin Scalia.171 Justice Anthony M. others had required the plaintiff to establish some type of egregious conduct. at 279 n. concurring). 168. Id. interpreted the Fourth Amendment to apply to the facts of this case... Id. 169. J.5 (Ginsburg. He stated that “the due process requirements for criminal proceedings do not include a standard for the initiation of a criminal prose- 167.170 Justice Ruth Bader Ginsburg. Id.”169 but expressed no view as to whether the plaintiff’s allegations stated a claim under the Fourth Amendment. concurred in the judgment. Id. He reiterated his strong opposition to the Court using substantive due process when a plaintiff alleges “unspecified” liberty interests. concurring). at 275 (Scalia. J. Justice Kennedy affirmed that the due process clause protects more than the liberty interests specified in the Bill of Rights. however. 170. holding that a malicious prosecution claim is one actually alleging a violation of procedural due process. 33 . Id.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS ess resulted in the justices expressing six very different views of the facts and the law of substantive due process.172 In contrast to Justice Scalia. Scalia. concurring. and suggested that the basis of his claim may have been that the arresting officer was responsible for “effectuating and maintaining” the seizure.

. at 289 (Souter. 177.SECTION 1983 LITIGATION cution. at 288 (Souter. concluded that the plaintiff had stated a violation of substantive due process. Even though states are not required to use grand juries. 34 . joined by Justice Harry A. J. First. Id. Id. at 283. Justice John Paul Stevens. Second.. dissenting). inability to transact business or obtain employment in his local area. Justice Stevens reasoned that the liberty interest is specified by the Constitution. concurring). whether these injuries are actionable under substantive due process. Justice David H. limitations of his liberty. in some circumstances. and freedom of movement by virtue of the terms of his bond. Id. 175 Justice Souter recognized that sometimes injuries may occur before there is a Fourth Amendment seizure. and personal pain and suffering. and he stated that the Bill of Rights specifically protects against pretrial deprivations of liberty. Using the grand jury clause of the Fifth Amendment. he stated. necessitating relocation to St. 174. at 302 (Stevens. . Souter rejected the substantive due process claim for two reasons. He also noted that in criminal procedure cases the Court “has identified numerous violations of due process that have no counterparts in the specific guarantees of the Bill of Rights. . In contrast to the other justices. 176 He found the officer’s conduct shocking. concurring).” 177 173. Blackmun. freedom of association. reputational harm among members of the community. the types of injuries alleged were compensable under the Fourth Amendment. 175. the presence of this clause helped to define the word “liberty” for Justice Stevens. J.. Id. Louis. J. the challenged governmental actions may state a violation of procedural due process.”174 Justice Souter thought that judicial “self-restraint” is necessary when examining this type of claim. inability to secure credit.”173 Justice Kennedy stated that. at 304. financial expense of his legal defense. was not addressed by the facts of this case. 176. Id. such a claim is available only when another amendment does not apply and the claim is “substantial. The plaintiff had alleged the following damages: . but found that such a claim was not viable in this case because state law provided the plaintiff with a remedy.

S. Farmer. but rather to the seizure arising “from legal process. (4) Without probable cause or otherwise unreasonable. 180.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS Thus. 294. Professor Martin A. 1977 (1994). and (5) Termination of the criminal proceeding in favor of the accused. Ct. The Supreme Court has defined this standard as containing both subjective and objective components. Fulton County Sheriff. 429 U. Ct. however. there was no clear majority with respect to the constitutional basis for these claims. to state a claim under the Eighth Amendment. at 302–03. Sheldon. Schwartz has argued that the Second Circuit’s five factors for Fourth Amendment malicious prosecution claims are more stringent than the common-law tort: “(1) A deprivation of liberty. Justice Souter’s opinion can be interpreted as establishing such claims under the Fourth Amendment.20. 181.3d 73 (2d Cir. Gamble. Seiter. 106 (1976). 302–03 (1991). 41 F. In response to Albright. Brennan. 180 The subjective component requires proof that officials acted with subjective deliberative indifference.” Martin A. (2) Resulting from a governmental seizure. Farmer v. 1994).3d 110. e. Cook v.182 Several Supreme Court decisions shed light on the meaning of these two elements.” Id. 182. In Estelle v.181 the objective component requires proof that the deprivation was sufficiently serious. 117 (2d Cir. at 325 (3d ed. 183.3d at 118). 179.S. 1997) (citing Singer. Schwartz & John E..S.g.” 179 Conditions-of-Confinement Claims Under the Eighth Amendment When challenging their conditions of confinement. 1A Section 1983 Litigation: Claims and Defenses. although a majority of the Court held that malicious prosecution claims were not viable substantive due process claims. 501 U. § 3. If. See.g. 97. Schwartz and Kirklin add that this type of claim is not a challenge to the decision to prosecute. then a majority of the Court would likely find these claims actionable under the Fourth Amendment. 1995). e. at 1977. a prisoner must prove that officials were deliberately indifferent to the 178. prisoners must prove that the conditions constituted “cruel and unusual punishment” within the meaning of the Eighth Amendment. 63 F. 35 . (3) In the form of legal process. some courts have held that abuse of criminal process can raise a procedural due process claim178 or a Fourth Amendment claim requiring the plaintiff to prove “the perversion of proper legal procedures. 63 F. Kirklin. See. Wilson. the Supreme Court held that.. Singer v. 183 a case involving medical care of prisoners. Wilson v. 501 U. 1970. 114 S. 114 S.

2 (White. 114 S. In Farmer v. 192 the Supreme Court defined the term “deliberate indifference. Ct. Id.S. Id. at 311 n. 188. A majority of the Court narrowly defined both the subjective and objective components.” that is. 1970 (1994). at 305. Id. The Court explained that the Eighth Amendment is not limited only to claims involving current physical harm: The Eighth Amendment also applies to conditions that may cause harm to prisoners in the future.189 Subsequently. 190. dissenting). The Court also held that the objective component requires proof that the deprivation was “serious. The Court held that the subjective component is a necessary element of all prison conditions claims. 36 . Id. at 2480–82. 193. 188 The dissent. noted that the courts of appeals have rejected such a “cost” defense. McKinney190 that a prisoner had stated an Eighth Amendment claim in challenging his confinement with a prisoner who smoked five packages of cigarettes a day. at 1984. 192. Seiter. Brennan.. Ct. 113 S. Fifteen years later.”187 With these requirements. 187. 185 a divided Court interpreted Estelle to govern all claims challenging prison conditions. 302–04 (1991).184 It determined that the Eighth Amendment was not violated by negligent medical care. Id. 294. the Supreme Court held in Helling v. such as “food.”193 Recognizing a duty on the part of prison officials to protect prisoners from harming each other. Id. 185.191 The Court held that this case was similar to Estelle because the challenge concerned the prisoner’s health. warmth. or exercise.” 186 “Nothing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivation of a single human needs exists. however. 2475 (1993). not objective. 501 U. Id. Inhumane prison conditions alone do not constitute an Eighth Amendment violation. one addressing a basic human need. at 304–05. the Court explained that the “deliberate indifference” standard in this context is subjective. 189. J. 191.SECTION 1983 LITIGATION prisoner’s “serious” medical needs. 186. the Court left open whether inadequate funding was a defense to a finding of subjective deliberate indifference. Subjective deliberate indifference requires proof that the official ac184. in Wilson v.

which safeguards the right to free speech.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS tually knew of a substantial risk of serious harm and failed to act. Id. at 1978. on the other hand. 197 based on the same type of circumstantial evidence that is used to prove objective deliberate indifference. the jury can make an inference that the official actually knew of the risk. it is established by showing that officials knew or should have known of the harm. Ct. First Amendment Claims Two frequently raised claims by government employees involve the First Amendment. 200. The Court added that proof of malicious conduct automatically establishes the objective component. Id. does not require proof of the actor’s state of mind. In Hudson v. 999 (1992). at 1000. The first claim 194. deliberate indifference is the proper standard. at 1982 n. The subjective and objective components of the analysis of conditions-of-confinement claims under the Eighth Amendment are also a part of the Court’s analysis of excessive force claims under the Eighth Amendment. 195. McMillian. 197. 196. 198 the Court held that the subjective component required proof that the prison officials acted maliciously. in general prison conditions litigation. however. subjective deliberate indifference protects the prison official who failed to deduce the risk of serious harm because the official. Id. Id. 201.201 The Court derived these different states of mind by balancing a prisoner’s interest in bodily integrity against the need for institutional order. at 998–99. 995. 37 . Id.196 Second.8 198. First.195 To explain its standard. 112 S. 199.194 Objective deliberate indifference. See also supra text accompanying note 151. Id. as long as there was more than a de minimus injury. did not know of the harm. in fact. the Court offered two comments. Id. 200 Malice is the proper standard in the prison discipline or riot contexts because exigencies exist. where prison officials do not encounter these difficult circumstances.199 The Court has thus recognized two different subjective components under the Eighth Amendment—deliberate indifference and malice.

When evaluating high-level employees. 116 S.SECTION 1983 LITIGATION addresses adverse employment decisions that were based on employees’ affiliations with political parties. To resolve these claims.” but whether the hiring authority can demonstrate that party affiliation is “an appropriate requirement for the effective performance of the public office involved. 205 It held that the First Amendment prohibits political patronage as the sole basis for decisions concerning “promotions. however. Ct. 207. Burns.” Four years later. transfers. Northlake. 2353. Finkel.S. Id. The second claim questions decisions based upon employees’ speech. 202 that patronage dismissals must be limited to “policy-making positions. 497 U. Id.” The Court explained that deficient performance effectively protects the government’s interests when addressing the employment of staff members. and recalls after layoffs. at 518. 38 . staff members and high-level employees. Political Patronage Claims In four decisions. 74–75 (1990). Republican Party of Illinois. A plurality of the Court first held.” 206 Although the Court recognized two classes of employees. in Elrod v. 206. 445 U.203 the Supreme Court rejected the Elrod rule.207 The O’Hare Court rejected drawing a distinction between inde- 202. the government. 62. 507 (1980). 427 U. at 74. 205. 367–68 (1976). The Court recently explained that public contractors may receive the protection afforded staff members in O’Hare Truck Service Inc.”204 The Court also stressed the need to evaluate actual performance in Rutan v. 204. the Supreme Court has limited the circumstances under which public employers may make political patronage the dispositive reason for adverse employment decisions. with patronage being a factor with respect only to the latter group.S. the Supreme Court has provided general guidelines for balancing the interests of the parties. v. may consider “who will loyally implement its policies. 347. stating that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position. 2358 (1996). 203.S. in Branti v. it nevertheless explained that performance is the central issue.

209 The Supreme Court has recognized that both inquiries describe standards. at 568.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS pendent contractors and employees because contractors are not less dependent on government income than are employees. Meyers. Pickering v. 461 U. and those that require harmony because of the “personal or intimate” nature of the work. The reasonableness standard is objective. 214. Id. Churchill.210 In determining what constitutes a matter of public concern. 210. The First Amendment requires balancing the need for employees to speak out on a matter of public concern against the need for an effective working relationship. 563.. 147–48 (1983). Waters v. 570 n.212 they must only reasonably investigate the nature of the employee’s speech. 211. Board of Educ.211 Employers need not determine what the employee actually said.) (plurality opinion joined by Chief Justice Rehnquist and Justices Souter and Ginsburg). 215.S. 209.S.. Ct. Pickering v.3 (1968).216 In evaluating the second prong—disruptiveness—courts are to show “wide deference to the employer’s judgment” when “a close work- 208. Connick v. however. 391 U. that must be applied to the facts of each case. whether it undermined an effective work environment. at 1889 (plurality opinion).S. the subjective good faith of the employer is not controlling. 391 U. Id. where speech on a matter of public concern may nevertheless be unprotected under the First Amendment: employment relationships that require confidentiality. 114 S. Id. 39 . 1878. at 2359–60.214 Only procedures outside the range of what a reasonable manager would use indicate a violation.213 If there was a substantial likelihood that the employee engaged in protected speech. 216. a manager must investigate before making an adverse employment decision regarding the employee. two general issues are central: (1) whether their speech was a “matter of public concern” and (2) if so. courts should consider “the content. Board of Educ. 213. 1889–90 (1994) (O’Connor. 212. form and context” of the statement. 138.208 Free Speech Claims When public employees claim that their employers made adverse employment decisions because of their speech. J. Id. 563. not rules. 215 There are two situations. 568 (1968). Id.

v. Waters v. privileges. 378.S. Churchill. however.222 217. 498 U. Bd. 138.C.S.3 confers power upon Congress to regulate interstate commerce. Dormant Commerce Clause Claims Violations of the dormant commerce clause are generally actionable under § 1983. 1889 (1994) (citing Mount Healthy City Sch. Ct. 461 U. 390–91 (1987).”218 Dismissal based on pretextual reasons. § 8.221 Courts may award declaratory and injunctive relief for dormant commerce clause violations. then the employer has violated the employee’s First Amendment rights. Doyle. and immunities within the meaning of 42 U. cl. of Educ. 274 (1977)) (First Amendment free speech claim required determining whether the plaintiff was fired because of protected or unprotected speech). § 1983. 429 U. 221. does not create a property or liberty right to a job. 439 (1991). Dist. or public contact role. 147–48 (1982). at 447.” the level of disruptiveness would probably be “minimal. 114 S. however. if an employer fires an employee not because of unprotected. the First Amendment applies only if the speech covered a matter of public concern. 219 For example. In Dennis v. It simply ensures that the governmental employer does not make adverse employment decisions that violate a person’s right to free speech. disruptive statements. however. but because of protected. 40 . 220. Article I.” but is also a provision that confers rights. nondisruptive speech. Connick v. Higgins. giving Congress preemptive authority.S. Rankin v.S.SECTION 1983 LITIGATION ing relationship [is] essential to fulfilling public responsibilities. 219. McPherson. 483 U. the dominant inquiry includes consideration of the employee’s job and the effective performance of the government. Id.S. policymaking. is impermissible. Id. 222. With respect to free speech claims. an employee does not have a “confidential. at 451. Meyers. 1878.” 217 If. 220 the Supreme Court held that the commerce clause is not only a “powerallocating provision. 218. it also acts as a restraint on state regulations even when Congress has not regulated in the area. The First Amendment. When considering both free speech and political patronage claims under the First Amendment.

declaratory and injunctive relief are inappropriate under § 1983 because Congress did not intend for state courts to intrude into state taxing schemes when an adequate legal remedy exists. Los Angeles. such relief is inappropriate because of the principles of comity and federalism. 103.S.CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL R IGHTS The Higgins Court held that there was an implied right under the commerce clause. 226 In state court. (2) whether the plaintiff’s interest is “too vague and amorphous”. 493 U. however. 106 (1989)). Dormant commerce clause claims. v. In National Private Truck Council.223 The Court found the dormant commerce clause was intended to create individual rights. Id. v. 41 . 582 (1995). at 448–49 (quoting Golden State Transit Corp. To determine whether this right was implied. 226. at 588. Id. are generally not actionable in federal or state court when the claims involve challenges to the state tax scheme. and (3) whether the provision was designed to benefit the plaintiff. 224 the Court articulated an exception to Higgins: § 1983 does not authorize federal or state courts to issue declaratory and injunctive relief in dormant commerce clause cases when state law provides an “adequate remedy at law. and the Tax Injunction Act. Id. Inc. Oklahoma Tax Commission. even though Congress may at any time eliminate the right by using its plenary powers.S. 225.” 225 In federal court. 223. at 586. the Court applied the three-part test it has used in determining whether rights under federal statutes are actionable under § 1983: (1) whether the provision “creates obligations binding on the governmental unit”. 515 U. 224.


with whom Chief Justice Warren E. 228. Powell. See 42 U. concluded that the historical evidence convincingly showed that the phrase “and laws. dissenting). “was—and remains—nothing more than a shorthand reference to equal rights legislation enacted by Congress. 229.229 that the phrase “means what it says” and that “the plain language of [§ 1983] undoubtedly embraces [the] claim that [state officials] violated the Social Security Act. 448 U.228 The Supreme Court. Thiboutot: “Plain Language” Approach The “and laws” phrase in § 1983 affords a remedy for the deprivation of some federal statutory rights. V). §§ 301–1397f (1988 & Supp. Burger and thenJustice William Rehnquist joined. over a strong dissent. 230. emphasizing that Congress had not attached any modifiers to the phrase “and laws. 227 the State of Maine and its commissioner of human services had allegedly deprived certain individuals of welfare benefits to which they were entitled under the Social Security Act. J.C. as well as federal constitutional rights. In Maine v. at 4. 43 . 1 (1980).”230 Defining the Limits of “And Laws” Actions Since Thiboutot.” as used in § 1983.S. Jr. the Supreme Court has decided a number of cases in which it has attempted to define the limits of “and laws” actions under 227.Chapter 4 Deprivation of Federal Statutory Rights Maine v. Thiboutot. Thiboutot.S.S.” Thiboutot. 448 U. 448 U.” held. at 12 (Powell.. Justice Lewis F..S.

dismissal is proper if Congress “specifically foreclosed a remedy under § 1983. Freestone. at 15 (citing former § 6010. Halderman232 was whether 42 U. Blessing v. Enforceable Rights The most difficult question for “and laws” cases is whether the relevant federal statute creates an enforceable right actionable under § 1983. which is now § 6009). the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms. 117 S. Ct. 451 U. Id. 44 . We have traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. In other words. the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Even if a plaintiff demonstrates that a federal statute creates an individual right. or impliedly.S. the statute must unambiguously impose a binding obligation on the States. . 232. § 6009. At issue in Pennhurst State School & Hospital v. there is only a rebuttable presumption that the right is enforceable under § 1983.S. not merely a violation of federal law. the “bill of rights” provision of the Developmental Disabilities Assistance and Bill of Rights Act.231 Thus the two major issues for § 1983 “and laws” cases are whether a federal statute creates an enforceable right and whether Congress foreclosed the § 1983 lawsuit by enacting a comprehensive scheme in the federal statute. Congress must have intended that the provision in question benefit the plaintiff. 1 (1981). by forbidding recourse to § 1983 in the statute itself. by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983. Third. First. Second. 233. .” Congress may do so expressly. 1353. Because our inquiry focuses on congressional intent.C. The Court recently summarized the principles it has developed for “and laws” actions as follows: In order to seek redress through § 1983 . 1359–60 (1997) (emphasis in original.SECTION 1983 LITIGATION § 1983. created enforceable rights in favor of the developmentally disabled.233 The Court identified the correct inquiry as whether the provision “imposed an obligation on the States to 231. cites omitted). a plaintiff must assert the violation of a federal right.

Id. Id. Los Angeles. 493 U.C. 243.]”235 the Court concluded that “the provisions of § [6009] were intended to be hortatory. rather than mandate. 418 (1987). at 420 (citations omitted). Id.S. Golden State. For example. 479 U. 103 (1989). at 10–11. Id. at 17.”234 Noting that “if Congress intends to impose a condition on the grant of federal moneys. at 24. at 18.241 Similarly. and thus was not enforceable through § 1983. 237.S. 236. Id. 235. 493 U. 45 . Id. v. § 6009 did not create substantive rights in favor of the mentally disabled to “appropriate treatment” in the “least restrictive” environment.”236 “Congress intended to encourage. at 421 n. V). it must do so unambiguously[. 242. 239 the Court held that Golden State could sue for damages under § 1983 to remedy the violation of its right under the National Labor Relations Act240 not to have the renewal of its taxi license conditioned on the settlement of a pending labor dispute. not mandatory. The defendant was a public housing authority subject to the Brooke Amendment’s “ceiling for rents charged to low-income people living in public housing projects. 244.238 In the next several decisions. See 29 U. in its implementing regulations.”245 Renters brought suit under § 1983 alleging that the Housing Authority had “imposed a surcharge for 234.CHAPTER 4: DEPRIVATION OF F EDERAL STATUTORY R IGHTS spend state money to fund certain rights as a condition of receiving federal moneys under the Act or whether it spoke merely in precatory terms. the Supreme Court found that federal statutes created enforceable rights. in Golden State Transit Corp. 240.”237 Accordingly. §§ 151–169 (1988 & Supp. at 112–13. 241. in Wright v.3. 239. 245. 238.S. “consistently considered ‘rent’ to include a reasonable amount for the use of utilities.S.242 the Court determined that regulations created enforceable rights. City of Roanoke Redevelopment & Housing Authority.”244 which reasonable amount did “not include charges for utility consumption in excess of the public housing agency’s schedule of allowances for utility consumption. Id.”243 The Department of Housing and Urban Development (“HUD”) had. at 20. Id. the provision of better services to the developmentally disabled.

”250 The Court concluded that health care providers were clearly intended beneficiaries of the Boren Amendment. Artist M. §§ 1396–1396v (1998 & Supp.247 The Court in Wilder v. 251.255 did not find an enforceable right as it considered a provision of the Adoption Assistance and Child Welfare Act of 1980. Id. Id.S. 496 U. 254.C. Id. 247.”254 In contrast. See 42 U. V). 347 (1992). See 42 U. and that the regulations were fully authorized by the statute. 252.C. 256.” including “the objective benchmark of an ‘efficiently and economically operated facility’ providing care in compliance with federal and state standards while at the same time ensuring ‘reasonable access’ to eligible participants. § 1396a(a)(13)(A) (1998 & Supp. at 512. V).249 which requires a participating state to reimburse health care providers at “reasonable rates. at 519.”253 the Court noted that “the statute and regulations set out factors which a State must consider in adopting its rates. Wilder.SECTION 1983 LITIGATION ‘excess’ utility consumption that should have been part of petitioners’ rent and deprived them of their statutory right to pay only the prescribed maximum portion of their income as rent.252 Rejecting the argument that the obligation imposed by the Boren Amendment was “too vague and amorphous” to be “capable of judicial enforcement. Id.” 246 The Court determined that the HUD regulations gave low-income tenants specific and definable rights to a reasonable utility allowance that were enforceable under § 1983. at 430. 248.S. 255. 46 . Id. §§ 620–628. and that this obligation was enforceable under § 1983. imposing a “binding obligation” on participating states to adopt reasonable rates of reimbursement for health care providers. at 421. 496 U.S. V). at 350. 253. Virginia Hospital Ass’n248 also found an enforceable right as it examined the Boren Amendment to the Medicaid Act.256 The Act provides for federal reimbursement of certain expenses incurred by a state in administering foster care and adoption services. 42 U. at 510.S. 249. Id. 251 that the amendment was cast in mandatory terms. 250.S. 498 (1990). the Court in Suter v. 503 U.C. conditioned upon the state’s submission of a plan 246. 670–679a (1988 & Supp.S.

that this section is not intended to alter the holding in Suter v.”261 whereas in the instant case the Child Welfare Act contained “[n]o further statutory guidance . Supp. 42 U. [cite omitted]. and once removed to reunify the child with his family. Congress responded to Suter by passing an amendment to the Social Security Act which provides that in all pending and future actions brought to enforce a provision of the Social Security Act. unambiguously conferr[ed] upon the child beneficiaries of the Act a right to enforce the requirement that the State make ‘reasonable efforts’ to prevent a child from being removed from his home.”262 257. Thus. 1995).S.258 The issue before the Court was whether “Congress.C. at 357. . Instead. the previous tests of Wilder and Pennhurst apply to the question of whether or not the particulars of a state plan can be enforced by its intended beneficiaries. the plan must satisfy certain requirements.260 The Court emphasized that in Wilder it had “relied in part on the fact that the statute and regulations set forth in some detail the factors to be considered in determining the methods for calculating rates. 42 U. Id. Wis. Id. at 360.S.C.S. .S. Suter. Thompson. however. 42 U. that section 471(a)(15) [42 U. 262. 258.257 To be approved. §§ 620–628. 1283 (E. 259. “the amendment overrules the general theory in Suter that the only private right of action available under a statute requiring a state plan is an action against the state for not having that plan. 877 F. V).S. at 359. The Court concluded that the only unambiguous requirement imposed by 42 U.C.C. 1268. § 671(a)(15)] of the Act is not enforceable in a private right of action. 670–679a (1988 & Supp. § 671(a)(15) (1988). such provision is not to be deemed unenforceable because of its inclusion in a section of the Act requiring a State plan or specifying the required contents of a State plan. 261. Id. provided. in enacting the Adoption Act. Artist M. as to how ‘reasonable efforts’ are to be measured. Artist M. v. 260.” Jeanine B. including one that mandates that the state make “reasonable efforts” to keep children in their homes.CHAPTER 4: DEPRIVATION OF F EDERAL STATUTORY R IGHTS for approval by the Secretary of Health and Human Services. 503 U.”259 The Court held that it did not. 1994). § 1320a-2 (amended October 20. § 671(a) was that the state submit a plan to be approved by the secretary. but not applied in prior Supreme Court decisions respecting such enforceability. 47 . while the holding of Suter with respect to the “reasonable efforts” provision remains good law.S.D. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v.C.

1993) (Suter “is not the death knell of the analytic framework established in Wilder”). 264.2d 65. 610 (D. in Livadas v. Arkansas Med. 10 F.SECTION 1983 LITIGATION Wilder and Suter Synthesized Courts of appeals have uniformly taken the position that the holdings of Wilder and Suter can and should be synthesized. Cir.3d 925. 525 (8th Cir. 10 F. exceptional cases. 265. 1992) (finding it “both prudent and possible to synthesize the teachings of Suter with the Court’s prior precedents”). 1319 (7th Cir.C. 88 Stat. at 2083–84. undifferentiated right to “substantial compliance” by state officials with a federally funded child-support enforcement program that operates under Title IV-D of the Social Security Act. Lampkin v.269 The case was remanded. Blessing will force plaintiffs to break their claims down into “manageable analytic bites” so that the court can “ascertain 263. Switzer. Ct. through a § 1983 action. as added. Whitburn. Bradshaw. Blessing. Stowell v. a general. Soc’y. 268 While the Court did not foreclose the possibility that certain provisions of Title IV-D might give rise to private. Reynolds. Freestone. 6 F.267 a unanimous Court rejected an attempt by custodial parents to enforce. Marshall v. and plaintiffs were advised to articulate with particularity the rights they were seeking to enforce. 1993) (“We choose to synthesize the two cases by proceeding with the two-step Golden State analysis used in Wilder. v.263 Later. at 1360–61. Miller v. 268. 117 S. Title IV-D of the Social Security Act. 1994) (“Suter majority expressly relied on parts of Wilder. 264 the Supreme Court held that the plaintiff had an enforceable right under the National Labor Relations Act “to complete the collective bargaining process and agree to an arbitration clause. 269. .A. §§ 651–669b (Supp. Inc. 606 (6th Cir. 2351 and as amended.3d 600. 42 U. 117 S. 928 (2d Cir. 1994) (synthesizing Suter and Wilder). 1993) (synthesizing Suter and Wilder). Ives. 48 . Id. enforceable rights. 68 (1st Cir. Ct. 33 F. 266. Wood v. 1353 (1997).”).”266 In Blessing v. carefully distinguished other parts.C.. 2068 (1994). 1997).3d 605. and is entirely consistent with it. Id. § 1983 remains a generally and presumptively available remedy for claimed violations of federal law.S. 267. District of Columbia. e. 27 F. Ct. bearing in mind the additional considerations mandated by Suter. .3d 519. Tompkins. 114 S. See.”265 The Court observed that “apart from . did not overrule the earlier case. 976 F.g.3d 1315.”). it faulted the court of appeals for taking a “blanket approach” and for painting “with too broad a brush” in determining whether Title IV-D creates enforceable rights.

at 12. at 13. See 33 U. sua sponte. 277. 273. 493 U.”278 the Court addressed. 468 U.”271 officials trying to establish Congress’s intent to foreclose must “make the difficult showing that allowing § 1983 actions to go forward in these circumstances ‘would be inconsistent with Congress’s carefully tailored scheme. 1 (1981). Id.S. National Sea Clammers Ass’n273 and Smith v. violating the Federal Water Pollution Control Act275 and the Marine Protection. Id. 992 (1984).277 Although the issue before the Court was “whether [the Association] may raise either of these claims in a private suit for injunctive and monetary relief. V).’”272 In only two cases—Middlesex County Sewerage Authority v.S.]”279 the Court held that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive. Id. 49 . Research.S.S. 453 U. an association claimed that the County Sewerage Authority discharged and dumped pollutants. Noting that both statutes contained “unusually elaborate enforcement provisions[. 103. Sea Clammers. where such a suit is not expressly authorized by either of these Acts. v. 453 U. (quoting Golden State Transit Corp. 278.” 270 Comprehensive Scheme: Congress’s Intent to Foreclose The Supreme Court recently explained that unless the federal statute under consideration “expressly curtails § 1983 actions. and Sanctuaries Act of 1972. §§ 1401–1445 (1988 & Supp. 276 In addition.S. 272. the enforceability of these Acts pursuant to § 1983. V). Robinson274—has the Court determined that comprehensive schemes within a statute foreclosed the § 1983 lawsuit. Id. In Sea Clammers. §§ 1251–1387 (1988 & Supp. 107 (1989)).CHAPTER 4: DEPRIVATION OF F EDERAL STATUTORY R IGHTS whether each separate claim satisfies the various criteria [the Supreme Court has] set forth for determining whether a federal statute creates rights. they may suffice to dem- 270. Id. 279. 276.C. at 1362. 275.C. at 1360.S. See 33 U. Los Angeles. the County Sewerage Authority allegedly violated the terms of their permits. 274. 271.


onstrate congressional intent to preclude the remedy of suits under § 1983.” 280 Similarly, in Smith the Court concluded that the “carefully tailored administrative and judicial mechanism” 281 embodied in the Education of the Handicapped Act (EHA)282 reflected Congressional intent that the EHA be “the exclusive avenue through which a plaintiff may assert an equal protection claim to a publicly financed special education.”283 The dissent disagreed:
The natural resolution of the conflict between the EHA [renamed IDEA], on the one hand, and . . . [section] 1983, on the other, is to require a plaintiff with a claim covered by the EHA to pursue relief through the administrative channels established by that Act before seeking redress in the courts under . . . [section] 1983.284

The dissent’s position became the law when, in response to Smith, Congress amended the EHA to provide explicitly that parallel constitutional claims were not preempted by the EHA and could be raised in conjunction with claims based upon it.285 Except for these two cases, the Court has determined that the federal statutes under consideration did not foreclose a § 1983 lawsuit.286

280. Id. at 20. 281. Smith, 468 U.S. at 992. 282. See 20 U.S.C. §§ 1400–1485 (1988 & Supp. V). In 1991 the Act was renamed Individuals With Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1491 (1994). 283. Smith, 468 U.S. at 1009. 284. Id. at 1024 (Brennan, J., joined by Marshall, J. and Stevens, J., dissenting). 285. See 20 U.S.C. § 1415(f) (1988 & Supp. V). 286. See, e.g., Blessing v. Freestone, 117 S. Ct. 1353, 1362 (1997); Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 522–23 (1990); Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 425 (1987).


Chapter 5

Governmental and Supervisory Liability
State Liability: Eleventh Amendment Immunity and Status as “Person” Under § 1983
The Eleventh Amendment287 shields a state from suit in federal court unless the state consents to suit288 or waives its immunity.289 A damages action against a state official, in his or her official capacity, is tantamount to a suit against the state itself and, absent waiver or consent, would be barred by the Eleventh Amendment as well.290 Although Congress may
287. “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. In Hans v. Louisiana, 134 U.S. 1 (1890), the amendment was interpreted to prohibit suits in federal court against a state by citizens of the defendant state. 288. A state’s consent to suit must be unequivocally expressed. Edelman v. Jordan, 415 U.S. 651, 673 (1974). 289. A state’s waiver of sovereign immunity in its own state courts is not a waiver of Eleventh Amendment immunity in the federal courts. Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147, 150 (1981) (per curiam). 290. In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court held that a state official who acted unconstitutionally could be sued in his official capacity for prospective relief. Such a suit “does not affect the State in its sovereign or governmental capacity” because the official who commits an unconstitutional act is deemed “stripped of his official or representative character . . . .” Id. at 159–60. The Eleventh Amendment bars prospective relief sought against state officials in their official capacity where supplemental jurisdiction is asserted to enforce conformity with



expressly abrogate a state’s Eleventh Amendment immunity pursuant to its enforcement power under section 5 of the Fourteenth Amendment,291 Congress did not do so in passing § 1983. 292 Thus the Eleventh Amendment is applicable to § 1983 litigation. Even if a third party indemnifies a state, the Eleventh Amendment still applies and protects the state from an adverse judgment.293 A question often raised is whether certain subdivisions, boards, or agencies are considered “arm[s] of the State” for Eleventh Amendment purposes. In Mount Healthy City School District Board of Education v. Doyle, 294 the Supreme Court looked, in part, to the nature of the entity created by state law and held that a local school district was not an “arm of the State” where Ohio law characterized the local school district as a political subdivision.295 In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 296 the Supreme Court followed the Mount Healthy approach and adopted a presumption that an interstate compact agency would not be entitled to Eleventh Amendment immunity “[u]nless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose . . . .”297
provisions of state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Where a state has waived its Eleventh Amendment immunity, however, and consented to suit, a state may be named as a defendant on a state law claim (e.g., respondeat superior), where that claim is part of the same “case or controversy” as the § 1983 claim(s) against the state actors sued in their individual capacities. Rosen v. Chang, 758 F. Supp. 799, 803–04 (D.R.I. 1991). 291. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Cf. Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996), holding that Congress had no power under the Commerce Clause to abrogate states’ Eleventh Amendment immunity. 292. Quern v. Jordan, 440 U.S. 332, 342 (1979). 293. Regents of the University of California v. Doe, 117 S. Ct. 900, 905 (1997). 294. 429 U.S. 274 (1977). 295. Id. at 280. Compare Martinez v. Board of Educ., 748 F.2d 1393, 1396 (10th Cir. 1984) (school districts in New Mexico are “arms of the State”), with Daddow v. Carlsbad Mun. Sch. Dist., 898 F.2d 1235 (D. N.M. 1995) (local board of education in New Mexico is not “arm of the State”), cert. denied, 116 S. Ct. 753 (1996). 296. 440 U.S. 391 (1979). 297. Id. at 401. See also Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994), where the Court held that injured railroad workers could assert a federal statutory right, under the FELA, to recover damages against the Port Authority and that concerns underlying the Eleventh Amendment—“the States’ solvency and dignity”—were not touched. Id. at 52. The Court noted:


298. Monroe County. but rather is on losses and debts. Michigan Department of State Police. Ct. or even if a § 1983 action is brought in state court. 301 a five-member majority of the Supreme Court held that a county sheriff in Alabama is not a final policymaker for the county in the area of law enforcement. 1734 (1997). where the Eleventh Amendment has no applicability. 299 Thus.303 The proper focus is not on the use of profits or surplus. Vernon.10. 101 F. If the expenditures of the enterprise exceed receipts. at 71 n.302 The Court in McMillian noted that the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical. 302. Thus. “all or nothing” manner. 301. 58 (1989). at 71. . . For example. 1996) (“In sum. 340 (4th Cir. 53 . or on a particular issue. Will precludes a damages action against the state governmental entity. We simply ask whether Sheriff Tate represents the State or the county when he acts in a law enforcement capacity. See also Harter v.CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY Because the Eleventh Amendment operates to bar suits against states only in federal court. at 51. 491 U. Id. 299.300 An official may be a state official for some purposes and a local government official for others. Id. a question emerged as to whether a state could be sued under § 1983 in state court. If the answer is yes.”). . is the State in fact obligated to bear and pay the resulting indebtedness of the enterprise? When the answer is “No”—both legally and practically—then the Eleventh Amendment’s core concern is not implicated. we are not seeking to make a characterization of Alabama sheriffs that will hold true for every type of official action they engage in. in McMillian v. at 1737. 303. This holding does not apply when a state official is sued in his official capacity for prospective injunctive relief. 298 the Court held that neither a state nor a state official in his official capacity is a “person” for purposes of a § 1983 damages action. 117 S. 300. Id. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area. even if a state is found to have waived its Eleventh Amendment immunity in federal court. at 1736. Id.S.3d 334. Id. In Will v. the officer or entity is immune under the Eleventh Amendment. when determining if an officer or entity enjoys Eleventh Amendment immunity a court must first establish whether the state treasury will be affected by the lawsuit.

under its approach sheriffs may be policymakers for certain purposes in some States and not in others. will necessarily be dependent on the definition of the official’s functions under relevant state law. . . policymakers. J. 3d 1285. and (4) the sheriff is elected locally by the voters in his county. See. 137 F. . . 307. Alabama sheriffs. e. But our understanding of the actual function of a governmental official. however. JJ. Id.”304 Thus. represent the state of Alabama.. Id. under Alabama law. Id. as the Court acknowledges. lower courts may need to reconsider their prior determinations as to whether an official represents a state or a county. when executing their law-enforcement duties. . some of them decades old. . 307 304. a county sheriff was a final policymaker for the county. Justice Ginsburg wrote: A sheriff locally elected. simply labeling as a state official an official who clearly makes county policy. Turquitt v. (2) the county provides the sheriff with equipment. dissenting). 306. in the area of daily management of jails). not for the state. who autonomously sets and implements law enforcement policies operative within the geographic confines of a county. 305 In dissent. paid. As the Court noted. 1998) (en banc) (overruling prior decision that erroneously held that. Jefferson County..306 In light of McMillian. at 1746 (Ginsburg. Even the presence of the following factors was not enough to persuade the majority of the Court otherwise: (1) the sheriff’s salary is paid out of the county treasury. is ordinarily just what he seems to be: a county official.g. Souter. at 1740. .. not state. 305. for example. The Court’s opinion does not call into question the numerous Court of Appeals decisions. (3) the sheriff’s jurisdiction is limited to the borders of his county. ranking sheriffs as county. and equipped. in a particular area.SECTION 1983 LITIGATION The Court emphasized the role that state law plays in the court’s determination of whether an official has final policy-making authority for a local government entity. joined by Stevens. 54 . . The Court does not appear to question that an Alabama sheriff may still be a county policymaker for some purposes. such as hiring the county’s chief jailor. “[t]his is not to say that state law can answer the question for us by. & Breyer. . not their counties. And. 1291 (11th Cir. including cruisers.

. 1292 (3d Cir.2d 247. 167 (1961). local governments . . however. 859 (7th Cir. See also Mark v. ordinance.3d 847. 55 . 22 F. a government body cannot be held liable under § 1983 merely because it employs a tortfeasor. 995 F. 1993). 310. 433 (8th Cir. 879 F. either on the part of the individual officer or the government body. City of Los Angeles v. 309.3d 1283. the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Gates. 1989)). Borough of Hatboro. . at 690–91.S.S.2d at 1477. Heller.3d 1137. 658 (1978).2d 1469. Moreover . regulation.S.S. Norman. 436 U. In a concurring opinion. 796. Judge Fletcher interpreted Chaloux as holding that the Monell requirement “does not apply to suits against municipalities that seek only prospective relief. 1472 (9th Cir.310 Monell overruled Monroe v. 365 U. See also Nix v. Accord. 799 (1986) (“If a person has suffered no constitutional injury at the hands of the individual police officer. Monell. Thus. . at 691–92. 308. 1994) (“A finding of municipal liability does not depend automatically or necessarily on the liability of any police officer. 1153 (3d Cir.”). 1995) (criticizing the approach of the panel opinion in Fagan). 251 (9th Cir. 1994) (where no underlying constitutional violation by officer.”) (emphasis in original). Boggs. 886 F. Pape311 to the extent that Monroe had held that local governments could not be sued as “persons” under § 1983. there can be no liability. no liability on the part of the city or police chief). . There is conflicting authority as to whether the Monell “custom or policy” requirement applies to claims for only prospective relief. . Department of Social Services308 holds that local governments may be liable for damages. as well as declaratory and injunctive relief. . Id. Thompson v. City of Vineland. Gates.CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY Municipal Liability No Vicarious Liability Monell v. 51 F. 311. 33 F. The Court has held that if there is no constitutional violation. 995 F.”309 Monell rejects government liability based on the doctrine of respondeat superior. 436 U. In Los Angeles Police Protective League v. Killeen. 1989) (insisting that plaintiff in official capacity injunctive relief action satisfy Monell official custom or policy requirement). 475 U. the majority stated that “the City can be subject to prospective injunctive relief even if the constitutional violation was not the result of an ‘official custom or policy’” (citing Chaloux v.2d 429. whenever “the action that is alleged to be unconstitutional implements or executes a policy statement. But see Fagan v. may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision-making channels. or decision officially adopted and promulgated by that body’s officers.

473 U. See also Rodriguez v.3d 470. 1989). Phillips. Kentucky v.”). the relief sought.2d 591. including the Second. 358. Shelby County Sheriff. .S. 59–60 (4th Cir. 464. Holt. e. 891 F. 165 (1985).g. See infra Chapter 7. 932 (1990)..2d 429. the plaintiff is seeking to recover compensatory damages from the government body itself. See. 1989). See Hafer v. at 159. Failure to expressly state that the official is being sued in his individual capacity may be construed as an intent to sue the defendant only in his official capacity.S. doubt may exist as to whether an official is sued personally. Meadows. as here. 1995) (“Where. 1995) (adopting the view of the majority of circuits. 56 . 159. Graham. 314. 316 While qualified immunity is available to an official sued in his personal capacity. Third. Norman. Seventh. Kentucky. 592 (6th Cir. Tenth. the plaintiff is seeking “to impose personal liability upon a government official for actions he takes under color of state law. Because we find the majority view to be more persuasive.315 To avoid confusion. 317. in his official capacity or in both capacities. 313.S.317 there is no qualified immunity available in an official capacity suit. the course of proceedings ordinarily resolves the nature of the liability sought to be imposed. 482 (2d Cir. where the intended defendant is the government body. denied. and requires the plaintiff to make out Monell-type proof of an official policy or custom as the cause of the constitutional violation. rather than the individual official in his official capacity. . that looks to “the substance of the plaintiff’s claim. e.2d 1241. cert. 431 (8th Cir. 315.”313 When a plaintiff names a government official in his official capacity.3d 56. But see Biggs v. 879 F. 361–62 (1991) (personal and official capacity suits distinguished). 469 U. 112 S.g. Ninth. 891 F. the plaintiff should name the entity itself.SECTION 1983 LITIGATION Personal and Official Capacity Suits It is important to understand the difference between personal capacity suits and official capacity suits. Ct. 473 U. See. and the course of proceedings to determine the nature of a § 1983 suit when a plaintiff fails to allege capacity. Fifth. 471–72 (1985). See Brandon v. [citing cases] . Leach v.312 When a plaintiff names an official in his individual capacity. 66 F. we hold today that a plaintiff need not plead expressly the capacity in which he is suing a defendant in order to state a cause of action under § 1983”).S. 495 U. Melo. Wells v. 1989)..314 Naming a government official in his official capacity is the equivalent of naming the government entity itself as the defendant. 1245 (6th Cir. and Eleventh. The Supreme Court has held that a local government de- 312. 316. 66 F. Brown. Nix v.

73 F. Owen v. City of Independence.3d 418. Id. Cir. Leatherman.318 Pleading Requirement In Leatherman v.S.”323 The Court concluded by noting that “[i]n the absence of such an amendment. Ct. The Court held that the lower court had erroneously upheld the dismissal of a complaint against a governmental entity for failure to plead with the requisite specificity. . 320. 30 (1983)). City of Newport v. 339 (4th Cir.3d 333. Tarrant County Narcotics Intelligence & Coordination Unit.. Inc. 453 U. 1160 (1993).C. 324. Tarrant County Narcotics Intelligence & Coordination Unit. Fact Concerts.”). local governments are absolutely immune from punitive damages. 1058 (5th Cir. . 113 S.]” the Court suggested that Federal Rules 8 and 9(b) would have to be rewritten to incorporate such a “heightened pleading standard. Id. that the Supreme Court’s rejection of the Fifth Circuit’s ‘heightened pleading standard’ in Leatherman constitutes a rejection of the specific requirement that a plaintiff plead multiple instances of similar constitutional violations to support an allegation of municipal policy or custom. 322.322 Finding it “impossible to square the ‘heightened pleading requirement’ .”). 954 F. 423 (D. Leatherman v. with the liberal system of ‘notice pleading’ set up by the Federal Rules[. 1996) (“A complaint describing a single instance of official misconduct and alleging a failure to train may put a municipality on notice of the nature and basis of a plaintiff’s claim. at 1163. 622 (1980). 247 (1981). 461 U.2d 1054. federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later. .”324 318. 113 S. Ct. Wade. 445 U. see Atchinson v. On the other hand. 319. while punitive damages may be awarded against individual defendants under § 1983 (see Smith v. 1994) (“We believe it is clear .”321 the Supreme Court refused to equate a municipality’s freedom from respondeat superior liability with immunity from suit. 320 While leaving open the question of “whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials. Id. at 1162.S. 15 F. Jordan v. 321. District of Columbia. 319 the Supreme Court unanimously rejected the “heightened pleading standard” in cases alleging municipal liability. 1992). For post-Leatherman decisions involving pleading against local government entities.CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY fendant has no qualified immunity from compensatory damages liability.S. 57 . 323. . Jackson.

327 “Custom or Usage” Monell allows the imposition of government liability not only when the challenged conduct executes or implements a formally adopted policy. 247 (1981) (vote of City Council to cancel license for rock concert was official decision for Monell purposes). Inc. 453 U. See also Bouman v. including persons not named in injunction. City of Delphi. 364 (6th Cir. but also when that conduct reflects “practices of state officials so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.3d 478. 622 (1980) (personnel decision made by City Council constitutes official city policy). Owen v. amounted to cognizable policy choice). 326. See also City of Newport v. holding that “[d]efendants’ decision to authorize use of deadly force to apprehend nondangerous fleeing burglary suspects was . . leading to arrest of all antiabortion protesters found within buffer zone. .S. regulation. 928 F. Inc. City of Independence. as opposed to express incorporation or adoption of state law into local regulations or codes. 328. . 793 (7th Cir. regulation. A local government’s mere enforcement of state law.SECTION 1983 LITIGATION Methods of Establishing Municipal Liability Unconstitutional Policy The clearest case for government liability under Monell v. denied. 436 U.326 The challenged policy statement. Memphis Police Dep’t. In Monell. Garner v. Monell. a deliberate choice from among various alternatives.S. 940 F.g. 1219 (1994). has been found insufficient to establish Monell liability.3d 358.2d 788.2d 1211 (9th Cir. Surplus Store & Exchange.S. 96 F. 1991).”). e. going beyond terms of state court injunction. at 691. 114 S. v. 1991) 58 . where an unconstitutional policy statement. 484 (11th Cir. 445 U. 436 U. . But see McKusick v. 1993) (rejecting defendants’ argument that they had no choice but to follow state “fleeing felon” policy. Department of Social Services325 is a case like Monell itself. 1996) (holding that development and implementation of administrative enforcement procedure. the Department of Social Services and the Board of Education had officially adopted a policy requiring pregnant employees to take unpaid maternity leave before medically necessary.”328 Liability is attributed to the municipality in custom-type cases 325. Ct. or decision must have been adopted or promulgated by the local entity. Note that in both Fact Concerts and Owen. ordinance.” 327. 8 F. ordinance. .S.. cert. decisions officially adopted by the government body itself need not have general or recurring application in order to constitute official “policy. or decision is formally adopted and promulgated by the governing body itself or a department or agency thereof. City of Melbourne.. Block. Fact Concerts. See. 658 (1978).

329. .” Id. supervise. at 5a).”). e. for Cert. Id.329 Acts of omission. The Sixth Circuit upheld the adequacy of the district court’s jury instructions on the issue of municipal liability for inadequate training. .” The plaintiff presented evidence of a municipal regulation. 59 . 640 (1992). as well as commission. (quoting App. to Pet. or with gross negligence. In City of Canton v. Supervise. 1477 (9th Cir.. 333 the Court unanimously rejected the city’s argument that municipal liability can be imposed only where the (“If a practice is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law. 330 Failure to Train. at 382. 954 F.3d 501.2d 1470. 471 U. McNabola v. Id.”). 112 S.. 511 (7th Cir. cert. Tuttle. 378 (1989). at 813.CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY through a policy maker’s actual or constructive knowledge of and acquiescence in the unconstitutional custom or practice. denied. .” 332 However.g. establishing a policy of giving police shift commanders complete discretion to make decisions as to whether prisoners were in need of medical care. or discipline its employees. In City of Canton. a plaintiff may proceed . to receive necessary medical care while in police custody. She asserted a claim of municipal liability for this deprivation based on a theory of “grossly inadequate training. See. 10 F. unusually excessive use of force [by a police officer] may . In City of Oklahoma City v. intentionally.S. 808 (1985). . .g. the plaintiff claimed a deprivation of her right. the only clear consensus reached in Tuttle was that municipal liability based on a policy of inadequate training could not be derived from a single incident of misconduct by a non-policy-making municipal employee. 331. e. under the due process clause. Harris. prove[s] that the municipality acted recklessly. or Discipline A city may be liable for failure to train. accompanied by evidence that such commanders received no training or guidelines to assist in making such judgments. Ct. Oviatt v. 332. 489 U. despite the absence of written authorization or express municipal policy. . may serve as the predicate for a finding of unconstitutional policy or custom. 333.. 1993) (“A municipal ‘custom’ may be established by proof of the knowledge of policymaking officials and their acquiescence in the established practice. 331 seven justices agreed that a verdict against the city could not be upheld where the trial court had instructed the jury that “a single. warrant an inference that it was attributable to inadequate training or supervision amounting to ‘deliberate indifference’ or ‘gross negligence’ on the part of the officials in charge. 330. See. 1992) (holding that “[t]he decision not to take any action to alleviate the problem of detecting missed arraignments constitutes a policy for purposes of § 1983 municipal liability”). Chicago Transit Auth. stating that the plaintiff could succeed on her failure-to-train claim “[where] the plaintiff .S. Pearce.

and for which the city may be held liable if it actually causes injury. Id. and concluded that “there are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for liability under § 1983. [footnotes omitted] Id. as anything but objective. The federal courts are not to become involved “in an endless exercise of second-guessing municipal employee-training programs. Id. at 390–91.8.SECTION 1983 LITIGATION challenged policy is itself unconstitutional.”337 334. objective deliberate indifference is necessary to prove a failure-to-train case . It would not be enough to establish that the particular officer was inadequately trained. 336. at 1984. and the inadequacy so likely to result in the violation of constitutional rights. “[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. the failure to provide proper training may fairly be said to represent a policy for which the city is responsible. nor that there was negligent administration of an otherwise adequate program.336 On remand the plaintiff would have to identify a particular deficiency in the training program and prove that the identified deficiency was the actual cause of the plaintiff’s constitutional injury. In that event. 337. Subjective deliberate indifference is necessary to prove an Eighth Amendment violation by prison officials. at 387.” Id. City of Canton. Brennan. Id. at 388 n. nor that the conduct resulting in the injury could have been avoided by more or better training. but rather has to do with what is required to establish the municipal policy as the “moving force” behind the constitutional violation. at 388. at 1981. The Court observed that: [I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious. Ct. In Farmer v. the Supreme Court recognized two types of deliberate indifference: subjective deliberate indifference and objective deliberate indifference.S. at 390. at 1980.” Id. 489 U. 114 S. 1970 (1994). that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. 335.”335 The Court was careful to note that the “deliberate indifference” standard has nothing to do with the level of culpability that may be required to make out the underlying constitutional wrong. permitting liability to be premised on obviousness or constructive notice.” 334 The Court held that “the inadequacy of training policy may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. Id. 60 . “It would be hard to describe the Canton understanding of deliberate indifference. In contrast.

J.341 Second. Allen v. Garner.. where there is “a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face.. concurring in part and dissenting in part). .”338 Justice O’Connor was also willing to recognize that municipal liability on a “failure to train” theory might be established “where it can be shown that policy makers were aware of. . at 397 (O’Connor. 1 (1985)). Muskogee. Mason County. in her concurring opinion. Id. For examples of cases in which courts have found a failure to train in an area where the need for training is obvious. and that a failure to so train would be so certain to result in constitutional violations as to reflect the “deliberate indifference” to constitutional rights required for the imposition of municipal liability.2d 1473. 230. Zuchel v.. Board of Educ.g.2d 730. e.g.CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY Justice Sandra Day O’Connor. . 934–45 (8th Cir. 1483 (9th Cir.”339 Thus.2d 1316.2d 929. Consolidated High Sch. 927 F. deliberate indifference may be established by demonstrating a failure to train officials in a specific area where there is an obvious need for training in order to avoid violations of citizens’ constitutional rights.340 First. a municipality may be held responsible under 338. failure to inform city personnel of that duty will create an extremely high risk that constitutional violations will ensue. 741 (10th Cir. J. concurring in part and dissenting in part). 471 U. 1991) (“Mason County’s failure to train its officers in the legal limits of the use of force constituted ‘deliberate indifference’ to the safety of its inhabi- 61 . 1991) (same). City of Canton identifies two different approaches to a failureto-train case. See.. . Id. . City & County of Denver. For example. 934 F. Id. 341. Dist. No.. and acquiesced in. see. 1997) (finding need for different training obvious where “[c]ity trained its officers to leave cover and approach armed suicidal. . 1993) (finding evidence clearly sufficient to permit jury reasonably to infer that Denver’s failure to implement recommended periodic live “shoot—don’t shoot” range training constituted deliberate indifference to the constitutional rights of Denver citizens). 1993) (setting out an analysis which clearly illustrates the two different methods of establishing City of Canton deliberate indifference).S. 119 F. 991 F.10. 843 (10th Cir. a pattern of constitutional violations involving the exercise of police discretion. elaborated on how a plaintiff could show that a municipality was deliberately indifferent to an obvious need for training. at 390 n. Thelma D. Davis v. [which pattern] could put the municipality on notice that its officers confront the particular situations on a regular basis. and that they often react in a manner contrary to constitutional requirements.3d 837. all of the Justices agreed that there is an obvious need to train police officers as to the constitutional limitations on the use of deadly force (see Tennessee v. 997 F. First. v. 340. 1327 (7th Cir. 339. Cornfield v. at 396 (O’Connor. a practice contrary to proper police procedures and tactical principles”). e. emotionally disturbed persons and to try to disarm them.

954 F. no policies and procedures manual . and evidence is adduced that those animals inflict injury in a significant percentage of the cases in which they are used. 342.345 the Supreme Court revisited the issue of municipal liability under § 1983 in the context of a single bad hiring decision made by a county sheriff who was stipulated to be the final policy maker for the county in matters of law enforcement. Stacy Burns. .343 Furthermore. See. 990 F. 343.”). 344. 62 . evidences a ‘deliberate indifference’ to constitutional rights. Ct.. Sheriff B.SECTION 1983 LITIGATION § 1983 where a pattern of unconstitutional conduct is so pervasive as to imply actual or constructive knowledge of the conduct on the part of policy makers. 1992) (finding that the simple fact that officers took a seven-hour course entitled “Disturbed-Distressed Persons” did not mean that their training was adequate as a matter of law).g. Gates.J. See.g. . Russo v. . City of Cincinnati. 1212 (11th Cir. cert. . 27 F. 117 S. a failure to adopt a departmental policy governing their use.”). 1993) (“The evidence demonstrates that the Sheriff’s Department had inadequate procedures for recording and following up complaints against individual officers . 1994) (“Where the city equips its police officers with potentially dangerous animals.. whose deliberate indifference to the unconstitutional practice is evidenced by a failure to correct the situation once the need for training became obvious.2d 1036. 275 (1991). Oviatt v. . Pearce. discipline and training of deputies in the Murray County Sheriff’s Department. [and] inadequate policies of supervision. 1445 (9th Cir. 1477–78 (9th Cir.” 344 Failure to Screen in Hiring In Board of County Commissioners v.”). . or to implement rules or regulations regarding the constitutional limits of that use. Moore hired his son’s nephew. 1382 (1997). The plaintiff suffered a severe knee injury when Reserve Deputy Burns forcibly extracted her from the car driven by her husband. having no policy may constitute deliberate indifference.3d 1432. denied. 1992) (holding that the decision not to take any action to alleviate the problem of detecting missed arraignments constitutes a policy of deliberate indifference to the obvious likelihood of prolonged and unjustified incarcerations). regardless of how substandard the content and quality of that training is. Vineyard v.2d 1207.2d 1470. County of Murray. who tants as a matter of law. 342 Under some circumstances. e. at least one court of appeals has rejected the notion “that a municipality may shield itself from liability for failure to train its police officers in a given area simply by offering a course nominally covering the subject. Brown. e. 112 S. 1047 (6th Cir. despite an extensive “rap sheet” that included numerous violations and arrests but no felonies. 345. Ct. Chew v. . 953 F.

” 350 In the view of the majority. at 1391. Id. had Sheriff Moore adequately screened Deputy Burns’ background. 622 (1980) (city council discharged employee without due process). 347.S. 453 U. City of Cincinnati. In such cases.. City of Newport v.3d 837. there are no real problems with respect to the issues of fault or causation. In a five–four opinion written by Justice O’Connor.S. 1997) (“The case before us is within the ‘narrow range of circumstances’ recognized by Canton and left intact by Brown. 845 (10th Cir. Owen v. See.5 (5th Cir. Id. The likelihood that officers will frequently have to deal with armed emotionally upset persons. 117 S. She sued both Burns and the county under § 1983. Fact Concerts.. 351.348 The majority also rejected the plaintiff’s effort to analogize inadequate screening to a failure to train. 247 (1981) (decision of city council to cancel license permitting concert directly violated constitutional rights).351 346. 445 U. and the predictability that officers trained to leave cover. Brown. at 1393. Id. Pembaur v. or directs an employee to do so. 469 (1986) (county prosecutor gave order that resulted in constitutional violation).3d 578.g.. Id. under which a single violation of federal rights may be a highly predictable consequence of failure to train officers to handle recurring situations with an obvious potential for such a violation. 1996) (holding county liable for sheriff’s rape of murder suspect. 350. Inc. Ct. Muskogee.CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY had avoided a police checkpoint. the Supreme Court held that the county did not violate the plaintiff’s rights by hiring Deputy Burns. he “should have concluded that Burns’ use of excessive force would be a plainly obvious consequence of the hiring decision. e. City of Independence.346 It distinguished Brown’s claim.349 The majority insisted on evidence from which a jury could find that. where sheriff was final policy maker in matters of law enforcement). e. at 1393. its prior cases recognizing municipal liability based on a single act or decision attributed to the government entity involved decisions of local legislative bodies or policy makers that directly effected or ordered someone to effect a constitutional deprivation. 475 U. could justify a finding that the City’s failure to properly train its officers reflected deliberate indifference to the obvious consequence of the City’s 63 . at 1388. Allen v. It is somewhat early to predict what impact Brown will have on municipal liability cases. involving a single lawful hiring decision that ultimately resulted in a constitutional violation. 348. at 1392. 74 F. 119 F. For post-Brown decisions. from a claim that “a particular municipal action itself violates federal law.”347 As the Court noted. approach. and attempt to disarm such persons will provoke a violent response. see. scrutiny of Burns’ record did not produce sufficient evidence from which a jury could make such a finding. Pippin. 586 & n.g. See also Bennett v. 349.S.

at 1396 (Souter. Servs. joined by Justices Ginsburg and Stevens.. criticized the “highly complex body of interpretive law” that has developed to maintain and perpetuate the distinction adopted in Monell between direct and vicarious liability.” choice. 489 n. 64 . One of our authors was among those who first criticized the rejection of respondeat superior liability in Monell.SECTION 1983 LITIGATION Justice Souter.”353 Conduct of Policy-Making Officials Attributed to Governmental Entity Under Monell.”). JJ.. dissented. City of Cincinnati. 354. dissenting). Blum. joined by Justices Breyer and Stevens. 694 (1978) (emphasis added). concurring in part and concurring in judgment). From Monroe to Monell: Defining the Scope of Municipal Liability in Federal Courts. 51 Temple L.Q.4 (1986) (Stevens. plaintiffs have demonstrated an inability to show a nexus between any failure to check criminal background and this assault. The likelihood of a violent response to this type of police action also may support an inference of causation—that the City’s indifference led directly to the very consequence that was so predictable. he could not even allege that the custodian who assaulted his daughter either had a prior record of violent crime or previously had been reported to the officials for sexual misbehavior towards students. 475 U.3d 1412. J. 409 (1978). dissenting). Even in the context of resisting a Rule 12 motion to dismiss. 1997) (en banc) (“When the district court afforded Doe the opportunity to amend his complaint. at 1401 (Breyer. joined by Stevens and Ginsburg. Id. 113 F..” 352 Justice Stephen G. 436 U. Department of Soc.”354 Since Monell. characterizing the majority opinion as an expression of “deep skepticism” that “converts a newly-demanding formulation of the standard of fault into a virtually categorical impossibility of showing it in a case like this. and (2) which “edicts or acts” will constitute “policy. 658. 117 S. In subsequent cases. may be attributed to the government. See Karen M.”). Doe v.S.. J. the Court has struggled with the questions left open by that decision. cited in Pembaur v. and calls for a reexamination of “the legal soundness of that basic distinction itself.. JJ. government liability attaches when the constitutional injury results from the implementation or “execution of a government’s policy or custom. Monell v. joined by Stevens and Breyer. J.. there have been attempts to clarify the important issues of (1) whose “edicts or acts.S. 353. Hillsboro Independent School District. 469.” beyond those of the official lawmakers. whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. Brown. Breyer. Ct. 352. 1416 (5th Cir.

453 U. but no search warrant for the premises of the clinic. they broke down the door and searched the clinic. .S. the Court noted cases in which it had held that a single decision by a “properly constituted legislative body . the process by which the decision was reached. . . (citing Monell. 475 U. 357. Pursuant to the county prosecutor’s order. Inc. The officers had capiases for the arrest of the witnesses. 473. Justice Powell (joined by Chief Justice Burger and Justice Rehnquist) dissented. at 472.. at 480 (citing Owen v. Fact Concerts. 469 (1986).S. at 694). Id. a doctor who had been indicted for fraud with respect to government payments for medical care provided to welfare recipients. 356. 475 U.S. the decision of the policy-making official would constitute the official policy for Monell purposes. J. J. 247 (1981) (city council canceled license permitting concert because of dispute over content of performance)). at 492–502 (Powell. 358.356 The county prosecutor ordered local law enforcement officers to “go in and get” two witnesses who were believed to be inside the clinic of their employer. . the Court described the “appropriate circumstances” in which a single decision by policy makers may give rise to municipal liability. 445 U. City of Cincinnati. and . 65 . state. 622 (1980) (City Council passed resolution firing plaintiff without a pretermination hearing) and City of Newport v. where a government’s authorized decision maker adopts a particular course of action.CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY In Pembaur v. criticizing the Court for its focus upon the “status of the decisionmaker” rather than “the nature of the decision reached .S.” Id.359 Thus.”358 But Monell’s language encompasses other officials “whose acts or edicts” could constitute official policy. City of Independence. dissenting).355 a majority of the Court held that a single decision by an official with policy-making authority in a given area could constitute official policy and be attributed to the government itself under certain circumstances. 436 U. or local law. the government may be responsible 355. . Id. concurring). 359..357 In holding that the county could be held liable for this single decision by the county prosecutor who ordered the violation of the plaintiff’s constitutional rights. . constitute[d] an act of official government policy. For example.. Justice White wrote separately to make clear his position (concurred in by Justice O’Connor) that a decision of a policy-making official could not result in municipal liability if that decision were contrary to controlling federal. Since the law was not settled at the time of the county prosecutor’s action in Pembaur. Pembaur. at 485–87 (White.S. Id.

Id. 363. writing for a plurality. including “‘custom or usage’ having the force of law.S. at 124 n. 361.1). at 113.” 361 Whether an official possesses policy-making authority with respect to particular matters will be determined by state law. aldermen. 364. Id. Jr. the relevant law was found in the St. See also Dotson v. In Praprotnik. Id.362 In City of St. 937 F. 491 U.” 364 Justice O’Connor. at 483. reinforced the principle articulated in Pembaur that state law will be used to determine policymaking status. 1173–75 (8th Cir.2d 920 (4th Cir. The Court also underscored the “relevant legal materials” to be reviewed by the trial judge in identifying official policy makers. writing for a plurality in Pembaur. Praprotnik.S.” 360 Justice William J. at 737 (emphasis in original). Louis v. Chester. 363 the Court made another attempt “to determin[e] when isolated decisions by municipal officials or employees may expose the municipality itself to liability under [section] 1983. concluded that “[m]unicipal liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered. Id. 701 (1989). for the court to decide by reference to state law. Id. the Court stressed that the identification of final policy-making authority is “a legal question to be resolved by the trial judge before the case is submitted to the jury. 485 U..S. Dallas Independent School District. 365. Id. 798 F. 366. 362. 1986).” Id. at 126. identifying a policy-making official is a question of law. City of St. 485 U. at 481.SECTION 1983 LITIGATION for that policy “whether that action is to be taken only once or to be taken repeatedly.366 The plurality also underscored the 360. Policymaking authority may be bestowed by legislative enactment or delegated by an official possessing such authority under state law. The court of appeals had allowed the plaintiff to attribute to the city adverse personnel decisions made by the plaintiff’s supervisors where such decisions were considered “final” because they were not subject to de novo review by higherranking officials. (quoting Praprotnik. “it is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command 66 . Brennan. Once the court has identified the policy makers in the given area.2d 1168. Louis v. 1991) (court examines state law and county code to find Sheriff final policy maker as to operation of county jail). and Civil Service Commission. which gave policy-making authority in matters of personnel to the mayor. Louis City Charter. 112 (1988). In Jett v. Praprotnik.” Id. Id. not one of fact to be submitted to a jury. The Court reversed a decision by the Eighth Circuit Court of Appeals which had found the city liable for the transfer and layoff of a city architect in violation of his First Amendment rights. at 124.365 Furthermore.

at 737 (emphasis in original). Gillette v. Supervisory liability can be imposed without a determination of municipal liability. .” Jett.370 although a supervisory official may be liable even where not directly involved in the constitutional that it occur . those policies. 67 . the agent’s action must implement rather than frustrate the government’s policy.” 369 As with a local government defendant. 368.S. e. . a supervisor cannot be held liable under § 1983 on a respondeat superior basis. at 127. 485 U.2d 397. is not a delegation to them of authority to make policy.2d 1164. . 485 U.”368 Supervisory Liability It is important not to confuse the concept of municipal liability for failure to supervise with the concept of supervisory liability. Clay v.S. 694 n. “When an official’s discretionary decisions are constrained by policies not of that official’s making. 1992) (“Liability for unauthorized acts is personal. the plurality noted that for a subordinate’s decision to be attributable to the government entity. e. Monell v. . Department of Soc. Conlee. . 400 (7th Cir. See.58 (1978). Simply going along with discretionary decisions made by one’s subordinates . Auriemma v. it is imposed against the supervisory official in his individual capacity for his own culpable action or inaction in the training.. 815 F.”367 Finally.. 436 U.g. Praprotnik. “[W]hen supervisory liability is imposed. . 1987). or by acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity. 1348 (9th Cir.2d 1342. supervision. 370. . 367. Supervisory liability runs against the individual. . 658.S.S. 979 F.”). See. 369.g. is based on his or her personal responsibility for the constitutional violation. . Delmore. 957 F. and does not require any proof of official policy or custom as the “moving force” behind the conduct. are the act of the municipality.. Praprotnik. to hold the municipality liable . 491 U. at 129–30. rather than the subordinate’s departures from them.CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY importance of “finality” to the concept of policy making and reiterated the distinction set out in Pembaur between authority to make final policy and authority to make discretionary decisions. or control of his subordinates. 1992) (concluding that mere inaction on part of policy maker “does not amount to ‘ratification’ under Pembaur and Praprotnik”). “the authorized policymakers [must] approve [the] decision and the basis for it. 1170 (8th Cir. Rice. Servs.

Young. 1995) (applying Third Circuit standard. 887 F. 138 (8th Cir. While § 1983 itself contains no independent state of mind requirement.S. Baker v. 13 F. Williams. 489 U. 535 (1981). 372 Since supervisory liability based on inaction is separate and distinct from the liability imposed on the subordinate employees for the underlying constitutional violation.S.3d 283. which requires personal direction or actual knowledge for supervisory liability). Monroe Township. Stroud. 897 F.374 A number of circuits use the Supreme Court’s analysis in City of Canton v. 527. City of Hobart. Lankford v. 287 (10th Cir.5 (3d Cir. Wilks v.376 the court held that a three-prong test must be applied in determining a supervisor’s liability. yet less than actual intent in order to establish supervisory liability.SECTION 1983 LITIGATION violation.3d 791 (4th Cir. 474 U. (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”. and (3) that there was an “affirmative causal link” 371. Daniels v.g. 562 (1st Cir. Rizzo v. 882 F. In Shaw v. See.2d 896. which requires “actual knowledge and acquiescence” and noting that other circuits have broader standards for supervisory liability).373 federal appellate courts consistently require plaintiffs to show something more than mere negligence. 374. 378 (1989). Parratt v. 68 . 1194 & n. 1989) (stating that supervisor’s conduct or inaction must be shown to amount to a reckless or callous indifference to the constitutional rights of others). Adkison.371 The misconduct of the subordinate must be “affirmatively link[ed]” to the action or inaction of the supervisor. 423 U..S. Harris375 as an analogy in determining whether a supervisory official is deliberately indifferent to the violation of constitutional rights. 73 F. e. 898 (7th Cir. Gutierrez-Rodriguez v.3d 1186. 451 U. 376. 1994). Goode. A plaintiff must establish: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff. 1996) (following Third Circuit approach. Howard v. 372. 362.2d 134. Cartagena. 1990). 375.S. 373. 1989) (holding that evidence was sufficient to allow the jury to find supervisors’ inaction amounted to reckless disregard of constitutional violations). 50 F. 327 (1986). 371 (1976).2d 553. Taylor. overruled in part on other grounds. the level of culpability that must be alleged to make out the supervisor’s liability may not be the same as the level of culpability mandated by the particular constitutional right involved.


between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.377

Although the courts do not differ significantly as to the level of culpability required for supervisory liability, there is some split on the question of whether the requisite culpability for supervisory inaction can be established on the basis of a single incident of subordinates’ misconduct or whether a pattern or practice of constitutional violations must be shown. 378

377. Id. at 798 (quoting Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990)), cert. denied, 513 U.S. 814 (1994); see also Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994) (en banc) (“The most significant difference between City of Canton and this case is that the former dealt with a municipality’s liability whereas the latter deals with an individual supervisor’s liability. The legal elements of an individual’s supervisory liability and a political subdivision’s liability, however, are similar enough that the same standards of fault and causation should govern.”), cert. denied sub nom. Lankford v. Doe, 115 S. Ct. 70 (1994); Greason v. Kemp, 891 F.2d 829, 836–37 (11th Cir. 1990) (finding City of Canton analysis a helpful analogy in determining whether a supervisory official was deliberately indifferent to an inmate’s psychiatric needs). 378. Compare Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989) (“A single incident, or a series of isolated incidents, usually provides an insufficient basis upon which to assign supervisory liability.”) with Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 567 (1st Cir. 1989) (“An inquiry into whether there has been a pattern of past abuses or official condonation thereof is only required when a plaintiff has sued a municipality. Where . . . plaintiff has brought suit against the defendants as individuals . . . plaintiff need only establish that the defendants’ acts or omissions were the product of reckless or callous indifference to his constitutional rights and that they, in fact, caused his constitutional deprivations.”).


Chapter 6

Absolute Immunity: A Functional Approach
If the challenged action by a state official is a judicial, quasi-judicial, prosecutorial, or legislative function, absolute immunity shields the official from having to pay damages for the alleged constitutional violation. As an affirmative defense, absolute immunity applies only when a governmental official performs one of these functions. The immunity does not attach to the office, but rather to certain functions performed by the official. With respect to legislative acts, absolute immunity bars both injunctive and monetary relief; with respect to judicial acts, Congress amended § 1983 to prohibit injunctive relief unless “declaratory relief was violated” or unavailable. Except for these circumstances, absolute immunity does not bar injunctive relief. This potent defense applies even when officials maliciously violated a plaintiff’s constitutional rights.379 Although the statute on its face does not refer to any immunity, the Supreme Court has recognized both absolute and qualified immunity as a defense by ascertaining Congress’s intent to provide immunities. In doing so, the Court has stated that “[m]ost officials are entitled only to qualified immunity.”380 It has limited application of the absolute immunity defense by applying a two-part standard. First, the Court considers whether the common law recognized an immunity. Second, if it did, then the Court questions whether the history or purpose of § 1983 supports applying the common-law immunity. Even if Congress intended absolute immunity to apply to a given function, courts must nevertheless question

379. See, e.g., Pierson v. Ray, 386 U.S. 547, 553–54 (1967). 380. Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2613 (1993).


Inc.S. Id. denied. 341 U.2d 560 (9th Cir. Cinevision Corp. Other officials can also perform legislative acts. Legislative Functions When officials perform legislative functions. 1063 (11th Cir. with the approval of Congress. 383. in this unique context.S. Id. e.. at 377.384 the Court determined that the TRPA’s decision regarding land use was a legislative act. City of Burbank.S. 386. Brandhove. cert. 367. 745 F. 719. The most difficult issue in determining whether absolute immunity applies is whether the challenged action was legislative. 382. at 394. and public services. Yeldell v. 440 U. See. 385. 446 U. with the agency’s purpose being to create a regional plan for “land use. conservation.g. or prosecutorial. Tahoe Regional Planning Agency (TRPA). In Lake Country Estates. quasi-judicial. Id. 387 the Court determined that the justices of 381. not elected. In Tenny v.. absolute immunity bars both injunctive relief and damage awards. transportation. “Investigations. 391 (1979). 379 (1951).2d 1056. they receive the broadest relief available under § 1983 because. judicial. whether by standing or special committees. 1992) (decision not to introduce legislation was a legislative act). the Court found that the legislators’ self-discipline and the voters’ ability not to reelect legislators were adequate checks on abuse of legislative power. 387. 1984).SECTION 1983 LITIGATION whether the challenged action was legislative.” 383 Unable and unwilling to saddle legislators with liability for this investigative function. 1054 (1985) (administering municipal contracts was an executive function). even though there was no common-law immunity for such an entity and even though all the members of the agency were appointed. recreation. at 379. v. are an established part of representative government. 471 U. 72 . 381 the Supreme Court held that state legislators performed protected legislative functions when they served on investigative committees. Cooper Green Hosp. Consumers Union of the United States. 384. 731–34 (1980). TRPA was an agency created by the states of California and Nevada.386 In Supreme Court of Virginia v.S. rather than administrative or executive. 382 The Court explained. v. 956 F.” 385 The Court held that absolute immunity applied.

73 . 388 The Court stated that the Virginia court had exercised “the State’s entire legislative power with respect to regulating the bar[. Ray. Judicial Acts Judicial acts are also protected by absolute immunity. 390 the Supreme Court held that local legislators are entitled to absolute immunity for their legislative activities.] and its members are the State’s legislators for the purpose of issuing” the rules. Id. His errors may be corrected on appeal. including controversial cases that arouse the most intense feelings in the litigants. Id. In Pierson v. the Supreme Court has broadly defined judicial actions.393 Such immunity is proper for two reasons: the common law of 1871 supported immunity.S. and the policy behind § 1983 was not to deter judges from performing their jobs: [I]mmunity is not for the protection or benefit of a malicious or corrupt judge. Ct. In several decisions. 386 U. at 731–34. In Bogan v.CHAPTER 6: ABSOLUTE IMMUNITY: A FUNCTIONAL APPROACH the Virginia Supreme Court had performed a legislative act in promulgating professional responsibility rules for attorneys. whose challenged actions were promulgating a new city budget and signing a law that eliminated the plaintiff’s position. Id. but for the benefit of the public. at 734. Scott-Harris. after she had complained about racial epithets in the workplace. 966 (1998). 392.389 By focusing on the action performed. 391. 547 (1967). It is a judge’s duty to decide all cases within his jurisdiction that are brought before him. but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice 388. the Court emphasized the functional nature of absolute immunity. at 554–55. Id. 390.391 The Court unanimously decided to extend absolute immunity to a city council member and mayor. not the job description of the actor. 389. at 972. 392 the Court held that the judicial functions of determining guilt and sentencing a criminal defendant are protected by absolute immunity. whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. 118 S. 393.

399 the Court held that a judge had performed a judicial act in ordering a bailiff to use excessive force to compel an attorney to attend court proceedings. Subsequently the Court had to define the boundaries of “judicial” actions.394 In short. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation. and no notice to the minor.S. not a § 1983 lawsuit for damages. 395. at 364. 502 U. they nevertheless have broad authority to maintain court proceedings. Similarly. In Stump v. absolute immunity is necessary to protect the judicial system. 400.S. Sparkman. 435 U. at 357 n. Stump had performed a judicial act when he ordered a mentally retarded girl to undergo a tubal ligation at the request of her mother. 394. 395 the Court held that Judge Harold D. The remedy for judicial errors is an appeal.396 The Court explained that absolute immunity applies to actions taken by judges “in excess of [their] authority. at 13. For example.” but not in the “clear absence of all jurisdiction. even though there had been no docket number. then the judge has performed a “judicial act” in “excess of his jurisdiction.” On the other hand. Id.7. 399.SECTION 1983 LITIGATION or corruption. if a judge with jurisdiction over criminal matters convicts a defendant of a nonexistent crime. Id.400 Even though judges do not have the authority to order police officers to commit a battery. at 553–54.”398 Furthermore. 74 . 398. at 356–57. Id. an action can be judicial even if it lacks the formality often associated with court proceedings. the question is whether the action is one normally performed by a judge. in Stump the Court recognized absolute immunity for the judge’s act of ordering a tubal ligation. then the judge has acted in the “clear absence of jurisdiction. 364 (1978). In determining whether an act is judicial. 397. in Mireles v.”397 To distinguish between these two standards. 396. Id. 9 (1991). the Court provided an example: If a probate judge who has jurisdiction only over wills nevertheless tries a criminal case. Waco. 349. Id. no filing with the clerk’s office.

Antoine v. The Court also noted that because judges are less able to delegate decision making there is less reason to afford them absolute immunity in contrast to other officials. 404 In contrast. Administrative functions are protected only by qualified immunity. at 320.S. 403.CHAPTER 6: ABSOLUTE IMMUNITY: A FUNCTIONAL APPROACH Distinguishing Judicial and Quasi-Judicial Functions from Administrative Acts Not all actions by judges may be protected by absolute immunity. 402. 407. at 207–08. both prison officials and school board members may assert only qualified immunity for their decisions to punish.S. 408.407 the Court held that absolute immunity was not necessary to protect school board members’ ability to exercise discretion in deciding how to discipline students. Although the Court rejected a court reporter’s claim for absolute immunity for her failure to timely produce a transcript for an appeal. The Court in Cleavinger v. 420 U. 437 (1993).S. 484 U. Butz v. he performed an administrative act. Strickland. Economou. 405. 478.S. 75 .S. 219 (1988). 508 U.402 The Court rejected the argument that judges should have absolute immunity for employment decisions because an incompetent employee can impair the judge’s ability to make sound judicial decisions. 406..408 401. 404. 193 (1985). Because of the functional nature of absolute immunity.” Similarly in Wood v. Id. Id. 438 U. the Court characterized them as employees “temporarily diverted from their usual duties. Saxner 405 held that a committee of prison officials did not perform a judicial act in deciding to discipline a prisoner after a hearing. protected only by qualified immunity. 508 (1978). many officials have attempted to assert absolute immunity for quasi-judicial functions.401 the Supreme Court held that when a judge fired a probation officer. at 230.403 the Court granted absolute immunity for decisions made by a judge at an administrative hearing. 308 (1975). Id. 474 U.406 Noting that the committee members were not administrative law judges. 429. In Forrester v. White. Inc. Byers & Anderson.

412. At common law. Id. 410. The remedies of professional selfdiscipline and the criminal law411 serve as checks to the broad discretion of prosecutors. 409 (1976). 414. Id. at 431. In several decisions the Court has defined a protected “prosecutorial” act. Id. 500 U. 409 the Court held that absolute immunity applied to a prosecutor’s action in “initiating a prosecution and in presenting the State’s case. at 496.413 The Supreme Court held that the prosecutor had absolute immunity for his participation at the probablecause hearing 414 but only qualified immunity for his legal advice to the police. 415. 412 the challenged actions included both investigative and prosecutorial acts: (1) the prosecutor’s legal advice to police officers about the use of hypnosis as an investigative tool and the existence of probable cause to arrest the plaintiff. 413. In Imbler v. and (2) whether absolute immunity would undermine the goals of § 1983. 76 . at 492.SECTION 1983 LITIGATION Prosecutorial Functions vs.S. and rejected absolute immunity for administrative and investigative acts. Id. In Burns v. Reed. Investigative Acts The Supreme Court has similarly accorded prosecutors absolute immunity for acts intertwined with judicial proceedings. 411. at 487. 478 (1991). Pachtman.S. The Court granted absolute immunity by considering two issues: (1) the availability of immunity at common law. and thus does not undermine the goals of § 1983. prosecutors had immunity from suits based on malicious prosecution and defamation. and (2) the prosecutor’s misleading presentation of a police officer’s testimony at a probable-cause hearing for the issuance of a search warrant. at 430–31. In addition.”410 Protected by this immunity was the alleged knowing use of false testimony at trial and the alleged deliberate suppression of exculpatory evidence. The Court also stated that qualified immunity would not adequately protect prosecutors. immunity properly shields prosecutors from suits by disgruntled criminal defendants and protects their ability to act decisively. Id. 424 U.415 409.

is not functionally tied to the judicial process. at 493. at 495. 425. 418. at 494.421 It held that the prosecutor did not have absolute immunity for two challenged actions: conspiring “to manufacture false evidence that would link [the plaintiff’s] boot with the boot print the murderer left on the front door” and conducting a press conference defaming the plaintiff shortly before the defendant’s election and the grand jury’s indictment of the plaintiff. nor should consider himself to be. Id.419 Moreover. at 2615. Id. 421. an advocate before he has probable cause to have anyone arrested. 417. Id. at 2616 n. Fitzsimmons.422 In neither instance did the prosecutor act as an “advocate” for the state.” 416 Whereas at the hearing the prosecutor acted as an “advocate for the State”417 and his appearance was “intimately associated with the judicial phase of the criminal process. Id. 423. 113 S. 2614–15 (1993). it would be “incongruous” to afford prosecutors absolute immunity “from liability for giving advice to the police. even if an important part of a prosecutor’s job.”420 The Supreme Court reiterated the need to link the challenged action to the judicial process in Buckley v. 422. at 492. 424. 419. 420. Id. Id.5. and thus was not entitled to absolute immunity. 77 .423 The Buckley Court attempted to create a bright line for distinguishing prosecutorial acts from investigative acts: “A prosecutor neither is. at 2616. Ct. Id. With respect to the second claim. at 491. 2606. at 2617–18.CHAPTER 6: ABSOLUTE IMMUNITY: A FUNCTIONAL APPROACH Absolute immunity is necessary only when there is “interference with . he may perform investigative work protected only by qualified immunity. a press conference. 416. even after a prosecutor has probable cause. Id. Id. .425 Under the facts of the case. conduct closely related to the judicial process. but to allow police officers only qualified immunity for following the advice. .” 424 The Court limited this rule by stating that the presence or absence of probable cause is not dispositive of the issue of absolute immunity.”418 “advising the police in the investigative phase” was not sufficiently close to the judicial process. the prosecutor did not have probable cause before he allegedly manufactured false evidence.

Fitzgerald428 the Court held that official acts by a President are protected by absolute immunity. See Bivens v. Briscoe v. 429. the Court did not refer to the presence or absence of probable cause in deciding whether actions performed by a prosecutor were protected by absolute immunity.430 President Nixon had absolute immunity for the firing of an employee.S. 344–49 (1983).S. The Court held that it would not defer discovery and a trial for alleged sexual harassment that occurred before Clinton became President. 1639 (1997). Ct.431 426. The Court refused to extend absolute immunity to this act because it interpreted the common law as not providing this type of broad immunity. The Court held that the prosecutor had absolute immunity for filing two unsworn pleadings—an information and a motion for an arrest warrant—but not for the act of personally vouching for the truthfulness of facts set forth in a document called a “Certification for Determination of Probable Cause. 427. In contrast. A Bivens action is one filed against a federal official for an alleged constitutional violation. 502 (1997). in Nixon v. the Court rejected President Clinton’s unique request for a deferral of his trial and discovery. 427 Testifying is an act inextricably intertwined with the judicial process. 431. but rather used the policy of absolute immunity to argue for postponement. 457 U. and prosecutorial functions. in Clinton v. Jones. The immunity is a “functionally mandated incident of the President’s unique office. 325. 731 (1982). LaHue.” Traditionally. rooted in the constitutional tradition of the separation of powers and supported by our history. in this Bivens action. Fletcher. 117 S. Six Unknown Named Agents. police officers and complaining witnesses perform the latter function when they personally attest to the truthfulness of statements in support of a warrant. Other Official Acts Protected by Absolute Immunity In addition to legislative. a request that did not assert absolute immunity. 428. Ct. 403 U.S. the Supreme Court has recognized that police officers testifying during a trial also merit absolute immunity. 388 (1971). Instead it focused on whether the prosecutor had filed sworn or unsworn pleadings with the court.” Id. at 749. 460 U. 118 S.426 however. 429 It held that. Although the Court has repeatedly stated that absolute immunity does not apply to an office but rather to the function performed. 430.SECTION 1983 LITIGATION In Kalina v. 1636. judicial. 78 .

When rejecting absolute immunity as a defense for administrative and investigative actions. Rhodes. 79 . application of the absolute immunity defense depends on the need to safeguard the judicial and legislative processes. 433.CHAPTER 6: ABSOLUTE IMMUNITY: A FUNCTIONAL APPROACH The Court has rejected applying absolute immunity in other circumstances: a public defender’s conspiracy with a state judge432 and a governor’s decision to deploy the National Guard at Kent State University.433 In sum. Scheuer v. 24 (1980).S. the Court has often stated that these actions will be adequately protected by the defense of qualified immunity. 449 U. 416 U. Sparks. 432. 232 (1974). Dennis v.S. which is at the heart of most § 1983 litigation.


however. did not have qualified immunity. Fitzgerald438 and its progeny provide guidance in determining the clarity of the law. 511. 472 U. garnishment. First. 81 .S. it functions as a defense to liability when the actions allegedly taken by officials did not violate “clearly established” law. 437. 842 (1996). 834.S. 2100.S. qualified immunity may provide officials with an “immunity from suit”437 by relieving them from the burdens both of discovery and a trial. When plaintiffs sue “private” individuals. 116 S. Pelletier. 436 Second. Mitchell v. the Court did not decide whether these private defendants acted under color of law. Ct. 438. Procedural motions under the Federal Rules of Civil Procedure protect officials’ immunity from suit. 457 U. 526 (1985). Forsyth. 457 U. 800 (1982). 504 U. 2109 (1997). 436. 435.S. Behrens v. 818 (1982). a private creditor. Ct. 158. Harlow v. the first element for a prima facie § 1983 lawsuit. Wyatt v. 159 (1992). Fitzgerald. qualified immunity bars an award of damages. 800. The seminal decision of Harlow v.Chapter 7 Qualified Immunity from Damages The affirmative defense of qualified immunity may provide officials434 with two types of protection. 117 S. 434. who invoked unconstitutional state “replevin. Richardson v. did not have qualified immunity for their actions in restraining a prisoner. who had limited supervision by the government. and attachment statutes” with the aid of state officials.435 If the law was not clearly established when officials acted. Cole. but it does not preclude the granting of injunctive relief. qualified immunity may not be a defense: private prison guards. In these cases. McKnight.

the Court weighed the plaintiffs’ interests in having their constitutional rights vindicated against the public’s need for governmental officials to perform their duties. courts are to resolve two issues: (1) Has the plaintiff stated a violation of a constitutional or federal statutory right?. 500 U. were the “contours of the right . In practice. Siegert v. was that right clearly established. the Supreme Court held that “governmental officials performing discretionary function[s] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 483 U. 635. 441. It also created a limited exception for officials who could prove that they neither knew nor should have known of the clearly established right. Eliminating the factual issue of subjective good faith would facilitate resolution of this defense prior to discovery. Gilley. 232 (1991).440 and (2) If so. 640 (1987). Id. i. litigation has focused on the standard.SECTION 1983 LITIGATION Defense to Liability In Harlow.S. Anderson v. The Harlow Court significantly modified the prior standard by holding that subjective bad faith was no longer relevant to the qualified immunity defense. sufficiently clear that a reasonable official would understand that what [he or she] is doing violates that right”?441 Resolution of the latter issue depends on the degree of correspondence between the facts of the case under consideration and the facts from prior cases decided at the time the official acted.e. Id. is in the public’s interest because it appropriately safeguards the officials’ decision-making processes and allows officials more time for public service.. the Court declared. 226. 82 . . then the officials would not receive qualified immunity because the case law would have put the official on notice that his or her conduct was clearly unconstitutional. 439. .”439 The purpose of this objective standard was to resolve insubstantial claims prior to discovery. at 818. In establishing the objective standard for qualified immunity. When applying the objective qualified immunity standard to § 1983 claims. Requiring officials to act in subjective good faith had resulted in their incurring the burdens of discovery and litigation for suits that were clearly unmeritorious. rarely has the exception applied. Creighton. An objective standard. If there is a close correspondence. 440.S.

468 U. the Court held that police officers acting pursuant to an invalid arrest warrant may nevertheless assert the defense of qualified immunity. Id.S. 468 U. United States v. 897 (1984) (objective reasonableness is the standard for a search done pursuant to an invalid warrant)).S. 83 . Holloway. 446. 516 (1994) (remanding and holding that the court of appeals must consider (de novo on appeal) relevant case law in resolving question of whether an asserted federal right was “clearly established”). at 1226–27. Leon. 335 (1986). Id.S. 449.448 It noted that it had similarly recognized two standards of reasonableness when creating the objective good-faith exception to the exclusionary rule. 449 Under that exception. 117 S.445 the Supreme Court addressed Fourth Amendment claims and explained that “clearly established” law does not refer to general principles of law. 446 In Malley. 443. 475 U. 335.”443 “Clearly Established Law” as Applied to Fourth Amendment Claims In Malley v. 448. This objective good faith standard asks whether a “reasonably well-trained officer” with a “reasonable knowledge of what the law prohibits” would have known that the challenged action violated the Fourth Amendment.450 442. Elder v. at 344 (citing United States v. Briggs. even if officers got evidence by committing an unreasonable search or seizure.447 The Court recognized two standards of reasonableness: conduct unreasonable under the Fourth Amendment could still be objectively reasonable for the purpose of qualified immunity.S. 450. This is a question of law for the courts to decide. 510. Leon. the Court stated that qualified immunity applies if a reasonable officer under the same circumstances could not have known his or her conduct was illegal. 897 (1984).S. the evidence could nevertheless be used in the case-in-chief if they acted in “objective” good faith. 1226 (1997). Creighton. in violation of the Fourth Amendment. 510 U. 1219. 445. 635 (1987).CHAPTER 7: QUALIFIED IMMUNITY FROM DAMAGES A decision by the Supreme Court is not necessary to establish this notice. Lanier. Malley v.S. Ct. 483 U. In these decisions. conflict among the courts of appeals may indicate that the law was not “clearly established. 343–46 (1986). 475 U. Briggs444 and Anderson v. Id. 444. 447. at 344–45. United States v.442 However.

483 U. qualified immunity may also shield officials both from discovery and a trial. [need not have] been previously held unlawful. the Court explained that the proper inquiry is whether the officials “acted reasonably under settled law in the circumstances.S. Id.” but if “in light of preexisting law the unlawfulness [was] apparent. 452. Id. See generally McCleary v. is unreasonable. or more reasonable interpretation of events can be constructed.” then qualified immunity does not apply. “[T]he very action in question. 504 U. dissenting from the denial of certiorari. not whether another. Ct. Bryant.” 453 The Anderson Court gave little guidance as to how to assess the “contours” of a right. that these general principles did not determine whether the officers had immunity.455 The decision further states. Anderson. 456. The Court conceded that the general principles of Fourth Amendment law are clear: a warrantless search of an individual’s home. It stated that a police officer may “reasonably. however. conclude that probable cause is present. 454. 84 . Determining when offi451. Id. a police officer may reasonably but mistakenly conclude that exigent circumstances exist. however. . at 641. Anderson v.. In Hunter. joined by Chief Justice Rehnquist and Justices O’Connor and Thomas) (stating that the appropriate qualified immunity question is whether “a reasonable officer could have thought that he had acted in accordance with the Constitution. Whether the officers violated “clearly established” law requires consideration of the “contours of a [constitutional] right. 967 (1992) (White. 534 (1992). at 640. .SECTION 1983 LITIGATION The Anderson Court affirmed this dual standard of reasonableness451 as it addressed whether police officers could assert qualified immunity for a warrantless search of the plaintiff’s home.S. 483 U. 635. J. If there is a “legitimate question” as to the unlawfulness of the conduct.”452 The proper inquiry is whether the contours of the right were “sufficiently clear that a reasonable official would understand that what he [did] violate[d] that right.456 Immunity from Discovery and Trial In addition to being a defense to liability. 112 S. Id. 455. The Court explained.”454 Similarly. at 537. qualified immunity applies.” Id. absent probable cause and exigent circumstances. but mistakenly. Creighton. and not whether an officer would have acted otherwise”). Navarro. 453.S. The Supreme Court adhered to this approach in its later per curiam decision in Hunter v. 636–41 (1986). . 966.

See. R.. but see Triad Assocs. making a “heightened pleading” standard unnecessary. e. 114 S. 118 S. 1114–15 (3d Cir. 457 (9th Cir. P.3d 492 (7th Cir. 460 plaintiffs had to plead with particularity. even though the Federal Rules of Civil Procedure only require notice 457. 500 U. Inc. Tunnel. Ct.S.S.CHAPTER 7: QUALIFIED IMMUNITY FROM DAMAGES cials may properly invoke this immunity from suit requires courts to interpret the Federal Rules of Civil Procedure in light of the qualified immunity defense.g.. R.. Thomas. a court assumes that the plaintiff’s allegations are true and determines whether these allegations state a violation of a constitutional or federal statutory right. 10 F. 10 F. 1994). The Court also expressed its reluctance to legislate pleading requirements: “our cases demonstrate that questions regarding pleading. Motion to Dismiss In the typical motion to dismiss under Fed. 226. 85 . Tarrant County Narcotics Intelligence & Coordination Unit. Many courts also consider motions to dismiss under Rule 12(b)(6) when officials raise qualified immunity as a defense. but see Triad Assocs. 635 (1980). 460.S.S. The Court recently stated: “We refused to change the Federal Rules governing pleading by requiring the plaintiff to anticipate the immunity defense. 446 U. 235 (1991) (Kennedy. 1993) (heightened pleading does not apply when there is a motion to dismiss). 639–40 (1980)). Civ. specifically left the issue open). Ct. J. then the court dismisses the claim. Robinson. Robinson. cert. 635. Ct.. 113 S.3d 492 (7th Cir. discovery.2d 1111. concurring) (stating that “[t]he heightened pleading standard is a necessary and appropriate accommodation between the state of mind component of malice and the objective test that prevails in qualified immunity analysis as a general matter”). 14 F.3d 449. 1595 (1998) (citing with approval Gomez v.g. 983 F. See. Crawford-El v. Gomez v. v. 458. Gilley. Fortner v. P. and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process”). Toledo. 1988). Branch v. (Under that standard. Civ. Britton. 1993). 1160 (1993). the Supreme Court has offered procedural guidance. 523 U. —. In several decisions. v. 2704 (1995) (court is not free to revisit the issue of heightened pleading because the decision in Leatherman v.458 and Fed. 446 U.457 The difficulty of considering qualified immunity at this time in the lawsuit is that qualified immunity is an affirmative defense. 1584. Inc. Id.. e. 459. 8(c) requires affirmative defenses such as qualified immunity to be raised in an answer. denied. If they do not. 12(b)(6). Siegert v.”459 The Supreme Court implied that some of the Federal Rules of Civil Procedure provide officials with the opportunity to gather information about a plaintiff’s case. Toledo.

The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant’s conduct at the time of the alleged acts. 465. at 1596–97 (quoting Siegert v. P. 7(a) gives district courts discretion to order a reply to an official’s answer. Fed. Crawford-El. According to the Supreme Court.. .5 (1998). 500 U. these rules adequately safeguard an official’s immunity from unnecessary discovery. Second. in its discretion.3d 1427.) First. at 1596.S. 226. 226.SECTION 1983 LITIGATION pleading. to survive a prediscovery motion for dismissal or summary judgment.465 In practice. Civ. Crawford-El. at 1596. 1433–34 (5th Cir. The district court may ban discovery at this threshold pleading stage and may limit any necessary discovery to the defense of qualified immunity. 500 U. 118 S. nonconclusory factual allegations’ . Siegert v. insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity. the court can again determine whether the case can proceed and consider any motions of summary judgment under Rule 56.S. P. the Supreme Court stated in a footnote: “the first step is to identify the exact contours of the underlying right said to have been violated. concurring in judgment)).” 463 Thus. Wood. 464. P. . 1708. 118 S. 461 Second. R. Lewis.” 462 Both of these rules accomplish the goal of a heightened pleading standard because the granting of the motions requires plaintiffs to “‘put forward specific. to the detriment both of officials and indi- 86 . when motions properly raise the qualified immunity defense. 1714 n. 118 S. Even if such limited discovery is allowed.464 In motions under Rule 12(b)(6). even when the underlying constitutional claim requires proof of an official’s intent. . . 47 F. 462. . Id. Gilley.” an issue arising from the qualified immunity affirmative defense. “standards of official conduct would tend to remain uncertain. 236 (1991) (Kennedy. a statement that rests on more than conclusions alone. Gilley. It explained that if courts were instead to assume a constitutional violation and address the second step. Fed. the court may. —. 232 (1991). 12(e) allows officials to move for a “more definite statement. both the Supreme Court 466 and lower courts467 461. accord County of Sacramento v. R. at its end. Ct. courts have decided two issues: whether the allegations state a claim and whether the law was “clearly established. and a district court’s discretion not to do so is narrow. In County of Sacramento. Id.S. Civ. whether the law was sufficiently clear to put officials on notice that their actions were unconstitutional. Schultea v. 523 U. J. at 1596. Vindicating the immunity doctrine will ordinarily require such a reply. 7 eliminates the need for a “heightened pleading” standard: First. 1995) (en banc). the district court must insist that a plaintiff suing a public official under § 1983 file a short and plain statement of his complaint. Ct.” Id. Ct. courts are to first decide whether the plaintiff has stated a claim before addressing the “clearly established” law question. which properly raises qualified immunity as an affirmative defense. R. Civ. The Fifth Circuit had previously recognized how Fed. 463.

526 (1985) (plurality opinion). Ct. 468 Officials may raise the qualified immunity defense in summary judgment motions under Federal Rule of Civil Procedure 56(c)469 both before 470 and after discovery. Forsyth. 646 n.S. 56(c).S. the plaintiff has alleged a violation of clearly established law. discovery is not to occur if the plaintiff has not alleged a violation of clearly established law.CHAPTER 7: QUALIFIED IMMUNITY FROM DAMAGES have often not addressed the first issue. 468. 467. 45 F. The Court twice stated that its two-step process is “the better approach. 483 U. 224 (1991) (per curiam) (granting qualified immunity after assuming officers violated the Constitution).3d 790. 466.” Id.S. Fed. Fitzgerald. at 646 n. 87 . Civ. 471 Under Rule 56(c). 842 (1996).2 (8th Cir.g. 457 U. 474 Even when the underlying constitutional claim sued on requires a plaintiff to prove an official’s intent. 470. 473. Pelletier. Fitzgerald. 511. 834. 1995) (stating that Eighth Circuit has consistently adhered to Siegert’s requirement to first address whether plaintiff stated a claim).6.” Id. 635. however. P. South Dakota Dep’t of Soc. Harlow. e. 469. Bryant.g. Anderson. 815–16 (1982). 457 U.S. Anderson v. 60 F.. 502 U. 474. Behrens v. Hunter v. Mitchell v. 483 U. 800.S. and the defendant alleges actions that a reasonable officer could have thought were lawful. 1995) (stating that Siegert does not compel courts to first decide whether plaintiff has stated a claim).S. at 818. See. Motions for Summary Judgment Before and After Discovery The Supreme Court’s purpose in creating an objective standard of reasonableness to evaluate qualified immunity was to resolve insubstantial claims prior to discovery. DiMeglio v.472 Under Harlow. 472. 800.473 If. 818–19 (1982).6 (1987).3d 505.S. Summary judgment motions before discovery are possible because the qualified immunity defense is not only a defense to liability but also an “immunity from suit” in some circumstances. 457 U. 116 S. 795–99 (4th Cir. R. e. See.. 471.. but see Manzano v. Servs. then courts must grant discovery tailored to the immunity question. Creighton. 472 U. Harlow v. summary judgment is permitted if there are no disputed material facts and the person is entitled to judgment as a matter of law. 510 n. Haines. courts are not to viduals. Harlow v. Instead they have simply assumed a violation when deciding the clarity of the law issue.

483.480 In short. P. 477.SECTION 1983 LITIGATION impose a “heightened standard of proof. 482 the Court explained that if the complaint alleged a violation of “clearly established law” and “discovery fail[ed] to uncover evidence that the defendant in fact committed those acts. district courts may limit discovery to an issue that may resolve the lawsuit before allowing discovery as to an official’s intent. Id. Civ. P. R. For example.S. Id. Id. and manner of discovery. Id. the “time. Civ. 481. Id.”475 Instead. 1584.6.20. at 1598 (quoting 28 U.”477 and the sequence of discovery. 482. 1595 (1998). a statute permitting dismissal of “frivolous or malicious” in forma pauperis suits. at 1597. 484. 511 (1985).” 478 In contrast. Anderson. Britton. 56(f) gives district courts discretion to postpone deciding an official’s motion for summary judgment if discovery is necessary to establish “facts essential to justify the [plaintiff’s] opposition. 26. 478. at 646 n.476 Under Rule 26. district courts may limit the number of depositions and interrogatories. 88 . 480. P. the length of depositions. 472 U. —. Summary judgment would nevertheless be possible if. district courts have “broad discretion in the management of the factfinding process. 483 U. they are to tailor discovery by using procedures provided in Fed. R.S. however. Id. Id. Forsyth. Crawford-El v. Ct. 484 In 475.” the defendant is entitled to qualified immunity.” 481 After discovery has occurred. 1998)). Civ. In addition. § 1915(e)(2). 11 or granting dismissal under 28 U. In Mitchell v. § 1915(e)(2) (Supp.C. the court determines that the alleged facts do not state a violation of clearly established law.C.S. officials may raise a second summary judgment motion. interpreting the facts in the light most favorable to the plaintiff. at 526.483 In many situations.S.S.”479 In addition. 479. Fed. 476. material facts are disputed. district courts safeguard officials’ right to be free from frivolous lawsuits by imposing sanctions under Fed. which frequently turn on credibility assessments. R. an official “may move for partial summary judgment on objective issues that are potentially dispositive and are more amenable to summary disposition than disputes about the official’s intent. at n. place. 523 U. 118 S.

R. 906 F. a court can then determine the clarity of the law at the time the official acted. 1992).490 After the jury makes its findings. at 228.S. 472 U. denied. Laws. In Hunter v.2d 1054. See.2d 303. then summary judgment is not possible. 431 (1990). 486. Civ. it is for the jury to determine the facts and for the court to determine whether the law was “clearly established” when the official acted. Mahoney v. 1991).g. 1992). at the close of both sides. Bryant..2d 1390 (9th Cir. the “immunity from suit” is properly lost and the case must go to trial. Warren v. Ct. 485. and the discovery indicates material facts are in dispute.491 In addition. however. Cross. See.g. Warlick v. 111 S.. 486 the Court held that “[i]mmunity ordinarily should be decided by the court long before trial. Id.. e. 929 F. P. e. or in a motion for a new trial. 89 . Fed. the facts as interpreted in the light most favorable to the plaintiff indicate a violation of clearly established law. 969 F. at 526. courts may consider renewed motions for qualified immunity.g. At this point. Floyd v. 491. 492. some courts489 have used special verdicts under Rule 49(a) to have a jury resolve the factual dispute. See. Dwyer.S. cert. 490.” 487 It criticized the lower court for “routinely” placing the issue of immunity “in the hands of the jury. Role of the Judge and Jury Once courts properly deny summary judgment because material facts are in dispute. 49(a).”488 To resolve the legal question of whether the law was clearly established. Kesery. 308 (7th Cir. 489. 1348 (11th Cir.”485 If. protecting their “immunity from suit.492 Resolution is possible during these trial stages if the defendant is entitled to judgment as a matter of law. 502 U. the immunity defense relieves officials from the burdens of trial. e. Id.CHAPTER 7: QUALIFIED IMMUNITY FROM DAMAGES this situation. These motions may occur after the plaintiff has presented her case. Mitchell. 487. 224 (1991). 1058 (7th Cir.2d 1339. after the jury’s special verdict. 976 F. 1991). 488.

S. 1804 (1997). 2151. When a district court denies an official’s claim to qualified immunity. 511. at 840. Ct. appellate courts must decide whether a particular order is a final decision.S.495 Whether an appeal is proper depends on whether the district court’s order is a “final” decision within the meaning of § 1291.C.494 a statute that creates a procedural right to an interlocutory appeal from a “final” decision. Ct. Mitchell v. 499. Mitchell stated that a district court’s determination that 493. 494. § 1291 (1993). 530–35 (1985). Section 1291 provides in part: “The courts of appeal .497 Because the Supreme Court has stated that appellate courts may not create a rule limiting officials to one interlocutory appeal. Pelletier. Generally. Fankell. 498.S. an order is a “final” decision if the district court denied qualified immunity by determining that the law was “clearly established” at the time the official acted. 842 (1996). 530 (1985). Behrens. Johnson v. it may be erroneously subjecting the official either to the burden of discovery or a trial. 116 S. 115 S. 497. 2159 (1995). a judicially created doctrine interpreting what finality means in § 1291. the official.” 495. § 1291. it was an immunity from unnecessary discovery and trials. Jones. . . . . 834. may take an interlocutory appeal.C. 116 S. 117 S. . § 1291 When a district court denies an official’s motion for qualified immunity. Mitchell v. 528–30 (1985). shall have jurisdiction of appeals from all final decisions of the district courts of the United States. Ct. 1800. Forsyth.SECTION 1983 LITIGATION Interlocutory Appeals Jurisdiction under 28 U. not only was qualified immunity a defense to liability.493 The jurisdictional basis for this appeal is 28 U.S. 496 it is not final if the district court only determined that the plaintiff had offered sufficient evidence to avoid summary judgment in favor of the official. 511. 90 . 472 U.S. a plurality of the Court interpreted Harlow as establishing an “immunity from suit” because it held that discovery should not proceed until the plaintiff has alleged a violation of clearly established law. Johnson v. 28 U. Ct. 472 U. in some circumstances. 472 U. An official may also seek interlocutory review from orders denying absolute immunity. Forsyth. In short. 511. 496. Mitchell v. 499 In Mitchell.S.C.498 Determining finality requires courts to examine the “immunity from suit” aspect of Harlow and the collateral order doctrine. Forsyth. Behrens v.

at 2159).S. Ct.CHAPTER 7: QUALIFIED IMMUNITY FROM DAMAGES the law was clearly established is a final order because it satisfies all three elements of the collateral order doctrine: (1) the order “conclusively determine[s] the disputed question”. if the district court determined that material facts were in dispute and decided that the law was clearly established. and (3) appeals of this type of order may cause unnecessary delay. Ct. Id. the second requirement of the collateral order doctrine. however. 501. Id.”500 Thus. 115 S. Without this appellate review. Id. 91 . at 842 (quoting Johnson. at 2158. The collateral order doctrine has its origins in Cohen v.S. 503. An order. that raises both issues—the clarity of the law and whether material facts are disputed—may be appealable. an appellate court is to examine the clarity of 500.” In contrast. and (3) the order would be effectively “unreviewable from a final judgment. 541 (1949). the official’s “immunity from suit” claim would be “unreviewable. 502. —. 116 S. if an appellate court were to reverse the district court’s order that the law was clearly established. 504. The Supreme Court recognized three policy reasons for not reviewing these orders: 503 (1) district courts have expertise in determining whether there are material disputed facts.. at 2159. the Court in Johnson v. 115 S. 504 the Supreme Court explained how appellate courts are to review this type of interlocutory order: “Johnson permits [an official] to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of ‘objective legal reasonableness. Pelletier. In Behrens v. Jones501 held that an appellate court lacks jurisdiction to review the single issue whether the district court erred in determining that there are material facts in dispute. 337 U. the official would have immunity from this claim.’” 505 Thus. Beneficial Industrial Loan Corp.) The appellate court would have conclusively resolved an important issue that was separate from the merits. 502 Such an order is not appealable because it is not separate from the merits. (2) appellate courts might revisit the issue in a later appeal. Id. 505. 2151 (1995). at 525–27. (Qualified immunity protects officials as long as they did not violate clearly established law. 834 (1996). (2) the order “resolve[s] an important issue completely separate from the merits of the action”. Ct. 515 U.

Dickerson v. See. in the light most favorable to the nonmoving party. 507. Ct. 951 F. The Supreme Court explicitly approved of this practice in Behrens. 512 In both situations.2d 1106. 116 S. .510 the district court may proceed with the lawsuit. (quoting Johnson.g. 372 (8th Cir. an issue for which it has jurisdiction under the collateral order doctrine.3d 370. 510. 508. e. to weed out frivolous claims.511 This “dual jurisdiction”—in the district court and the appellate court—is similar to the dual jurisdiction present when criminal defendants seek interlocutory appeals from orders denying their motions raising the Fifth Amendment protection from double jeopardy.” Id. 37 F. 1107 (9th Cir. 116 S. Nevertheless. 1991).508 However. . likely assumed. Courts of appeals have supervisory powers to “establish summary procedures . Id. once an official files a timely notice of appeal. at 841. 1994). 511.SECTION 1983 LITIGATION law issue.”506 then the appellate court “may have to undertake a cumbersome review of the record to determine what facts the district court. United States v. 115 S. 252 (6th Cir. district courts and appellate courts may encounter important related jurisdictional issues: jurisdiction when appeals are frivolous and jurisdiction under the doctrine of pendent appellate jurisdiction. LaMere. Behrens. a district court loses jurisdiction.. by using the district court’s assumed facts.g. 58 F. Under the traditional divestiture rule.3d 251. at 2159). See generally United States v. district court may retain jurisdiction by writing an order explaining why appeal is frivolous). 512. 506. Id. 1995) (stating that after a criminal defendant files an interlocutory appeal from an order denying his motion based on the Fifth Amendment double jeopardy clause.. Other jurisdictional questions for interlocutory appeals When officials seek interlocutory appeals. e. Kress. Ct. See. district courts may proceed.” 507 Such a review thus requires the courts to review depositions and other evidence raised in response to a summary judgment motion. 92 . If the district court “did not identify the particular charged conduct that it deemed adequately supported. 509. McClellan. the appellate court also has jurisdiction to determine whether it has jurisdiction after the district court has declared the appeal to be frivolous.509 After writing an order explaining how the appeal is frivolous. Ct. a district court may retain jurisdiction after denying an official’s motions for summary judgment raising qualified immunity if it certifies the appeal as frivolous. at 841.

it has discretionary jurisdiction to append to this issue whether the district court erred in deciding that material facts were in dispute.3d 1363. Ct. 2159 (1995). Johnson v.. —. 101 F. Johnson.g. 515 U.516 513. 115 S. 117 S. 88 F. 2151. an appellate court has jurisdiction under § 1291 to decide whether the district court erred in deciding that the law was clearly established. Chambers County Comm’n. Jones. 2514 (1997). Jones. 1651 n. 2151 (1995). 1203. 115 S.CHAPTER 7: QUALIFIED IMMUNITY FROM DAMAGES Another common jurisdictional question arises from officials asking appellate courts to decide whether the district court erred in deciding that material facts were in dispute. See.3d 1554 (11th Cir. 1996). Ct. See. 117 S. 513 Yet. McMillian v. cert. 514. 516. at 2159. e. 115 S. appellate courts do not have jurisdiction after Johnson v. 1636. Johnson. 93 . some courts have decided this issue.. 115 S.41 (1997). the Court suggested that the appellate court would be “unlikely” to use pendent appellate jurisdiction to review the district court’s determination as to the facts.515 In the immunity context.g. amended. 514 Pendent appellate jurisdiction is a discretionary doctrine that permits appellate courts to decide an issue for which they do not have jurisdiction if that issue is inextricably intertwined with an issue for which they have jurisdiction.S. 515. 1211–12 (1995). Ct. e. denied. Swint v. in Johnson. Clinton v. under the doctrine of pendent appellate jurisdiction. Ct. Ct. Ct. Under § 1291. Jones. However.


249–50 (1989). . .S. shall be exercised and enforced in conformity with the laws of the United States.” state law will apply as long as it is “not inconsistent with the Constitution and the laws of the United States. or are deficient in the provisions necessary to furnish suitable remedies . it does not describe the applicable statutes of limitations. the Supreme Court has often looked to 42 U.C.S. 42 U. and Tolling Rules Although § 1983 provides a cause of action for violations of constitutional and federal statutory rights. .S. Id. 517 which specifies that if the federal law is “deficient. a state’s statute of limitations relating to personal injury is applicable to § 1983 litigation. 520 State tolling provisions similarly apply to § 1983 litigation. nor does it detail accrual and tolling rules. but in all cases where they are not adapted to the object. .519 If a state has multiple statutes relating to personal injury. so far as such laws are suitable to carry the same into effect. § 1988 (1993) provides as follows: The jurisdiction in civil and criminal matters conferred on the district courts . Id. . 519. 261 (1985). Owens v. .”518 Although application of § 1988 does not result in one applicable federal rule.Chapter 8 Procedural Defenses Accrual. . so far as the same is not inconsistent with the Constitution and the laws of the United States.S. 518. When § 1983 does not address important litigation issues. then the applicable limitation is the one found in the general or residual statute. Wilson v. shall be extended . 471 U. 95 . . Statutes of Limitations. as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction .C. the common law. 488 U. . 517. § 1988. Okure. 235. . . Under § 1988. Garcia. 520. the Supreme Court has looked to this statute to resolve issues related to statutes of limitations as well as tolling rules.

Allen v. Martin A. The issue centers on applicable federal common law of preclusion. 90. 454 U. the Supreme Court appears to be strongly inclined to pick the earlier date. .S. 524. McCurry.S. 94 (1980). 462 U.. 525.522 In assessing the applicable date. The courts of appeal generally agree that the accrual of a claim is a federal issue. Fernandez521 held that courts should assess accrual from the date the employer notifies an employee of an adverse decision. 306 (1983) (issue preclusion).SECTION 1983 LITIGATION The issue of accrual is more complex. § 1738 (1993). See. Bd. 75 (1984) (claim preclusion). Id.S.S.S. 522. Dist. 1997).C. Both claim preclusion (res judicata) and issue preclusion (collateral estoppel) apply to § 1983 litigation.C. Kirklin. If there is more than one plausible alternative. 523. 465 U. Id. § 12. The Supreme Court in Chardon v. the relevant statute is 28 U. (2) “controlling facts or legal principles have changed significantly since the 521.. Haring v. 527.”523 Claim and Issue Preclusion When a federal court has to consider the effect of a prior state court judgment in § 1983 litigation.”527 The Supreme Court has limited the application of issue preclusion for state court judgments under certain circumstances: (1) “the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court”. 96 . Warren City Sch. at 13 (3d ed. 6 (1981). the Supreme Court “takes a hard line on when civil rights claims for relief accrue. e.S. 526. not the date of dismissal. Prosise. 449 U. 1C Section 1983 Litigation: Claims & Defenses.524 Section 1738 provides that the “judicial proceedings of any court of any State shall have the same full faith and credit in every court within the United States .”525 Claim preclusion prevents “parties or their privies from relitigating issues that were or could have been raised”526 in the action in which a court has rendered a final judgment. Migra v.4.g. as they have by law or usage in the courts of such State. 28 U. § 1738. at 8. . of Educ. Schwartz & John E. Issue preclusion bars relitigation of an issue of fact or law that was necessary to the prior judgment in “a different cause of action involving a party to the first case.

federal courts must give the agency’s fact finding the same preclusive effect to which it would be entitled in the State’s courts. 284 (1984). however.S.CHAPTER 8: P ROCEDURAL DEFENSES state-court judgment”.533 528. Id. 531.529 Preclusion is more complex. 462 U. 530. 365 U. Haring.” 528 Because § 1738 applies to “judicial proceedings. at 313–14 n. . when the prior decision was rendered by an administrative body. Id.” it does not apply to arbitration decisions. 530 the Supreme Court held “that when a state agency acting in a judicial capacity . 532 the Court nevertheless concluded that Congress did not intend to broadly limit § 1738. Pape.S. 466 U. .” 531 This federal common-law rule of preclusion focuses attention on the nature of the proceeding. McDonald v.7.S. and (3) “special circumstances warrant an exception to the normal rules of preclusion. 788 (1986). at 180. 529. . Elliott. 533. Although this rule seems contrary to the purposes of § 1983 as articulated in Monroe v. City of West Branch. at 799. 167 (1961). a state’s rule of preclusion. . . and its fact finding. 97 . 478 U. In University of Tennessee v. 532. resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.S.


at 800.S. Pullman Co.” 534 Accordingly.S. 536. United States. 538. conductors were Caucasians. the federal court should 534. Id. at 498. Id. porters on Pullmans were African-Americans. 496 (1941). Id. v. 424 U. 536 Burford. at 497–98.542 The Supreme Court held “that when a federal constitutional claim is premised on an unsettled question of state law. 541.” 535 and the Supreme Court has limited the circumstances appropriate for abstention. Younger v.S. “[a]bstention from the exercise of federal jurisdiction is the exception. 401 U. Pullman Co. 540. Plaintiffs assailed the order on both state law and federal constitutional grounds.S. 540 plaintiffs sought to enjoin the commission from enforcing a duly promulgated order requiring all railroad sleeping cars in the state of Texas to be under the control of a person having the rank of conductor.541 At the time. 817–18 (1976).S.. Harris. 537. 542. Burford v. 538 and Colorado River. 312 U. 539. 496 (1941).Chapter 9 Abstention Doctrines The Supreme Court has described a federal court’s obligation to adjudicate claims properly within its jurisdiction as “virtually unflagging. Colorado River Water Conservation Dist. 319 U.. at 813. 312 U. 535.S. Colorado River. 424 U. not the rule. Four abstention doctrines apply to § 1983 litigation in federal court: Pullman.. 99 . 539 Pullman Abstention In Railroad Commission of Texas v. 37 (1971). Sun Oil Co. 315 (1943).537 Younger. 800. Railroad Comm’n of Texas v.

Thus.3 (1994). 528. 551. Harrison v. 546. England. Id. 77. 375 U. 83 (1975) (interpreting Pullman). 167. Moore. Louisiana State Board of Medical Examiners.”550 A party may elect to forego the right to return to federal court by choosing to litigate the federal constitutional claim in state court. but stays its proceedings while the state court adjudicates the issue of state law. fully litigated his federal claim in the state courts. . If a party so elects.S. If the commission had no such authority.547 the Court set out the procedures to be followed when Pullman abstention is invoked.”546 In England v. the Supreme Court has held that. at 501. Forssenius. 420 U. 411 (1964).S.549 A party can. even in § 1983 cases.SECTION 1983 LITIGATION stay its hand in order to provide the state courts an opportunity to settle the underlying state-law question and thus avoid the possibility of unnecessarily deciding a constitutional question. 545. at 421–22. at 419. a district court generally retains jurisdiction over the case. 544. Pullman. 312 U. 380 U.C. N.551 543. Federal Jurisdiction § 12. Id. See generally Erwin Chemerinsky. 550. . 547.”543 Thus. 548. but only the postponement of its exercise. 177 (1959). Harman v. at 417. 360 U. Harris County Comm’rs Court v.A.S.S.548 A party has the right to return to the district court for a final determination of the party’s claim once the party has obtained the authoritative state-court construction of the state law in question.A. An alternative to the procedures outlined in England exists in those states that have “certification” statutes allowing a federal appeals court or district court to “certify” a question of unsettled state law to the highest court of the state for a decision. expressly reserve this right. 549.S. 375 U. the district court should have deferred its decision until the Texas court decided whether the commission had authority under state law to issue the order.544 Pullman abstention is applicable only when the issue of state law is unsettled and when the state statute is “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question. the sole fact that the state court’s decision may have been erroneous will not be 100 . and in no event will the right be denied “unless it clearly appears that he voluntarily .”545 Under Pullman abstention.. but need not.S.P. 534–35 (1965). The availability of certification has a great impact on the time and cost involved in Pullman abstention. Pullman abstention does not “involve the abdication of jurisdiction. there would be no need to address the federal constitutional issue.

The Court found that “[t]hese questions of regulation of the industry by the sufficient to lift the bar to relitigation of federal issues decided after a full and fair hearing in state court. 556 The state scheme evidenced an effort to establish a uniform policy with respect to the regulation of a matter of substantial local concern. 555 The Texas legislature had established a complex. in contrast. cutting the cost. . The Court explained: Certification today covers territory once dominated by a deferral device called “Pullman abstention” .CHAPTER 9: ABSTENTION DOCTRINES In Arizonans for Official English v. . 101 . The order was challenged as a violation of both state law and federal constitutional law. Certification procedure. Sun Oil Co. 554 the plaintiff sought to enjoin the enforcement of an order of the Texas Railroad Commission permitting the drilling of some wells on a particular Texas oil field. allows a federal court faced with a novel state-law question to put the question directly to the State’s highest court. 552. Pullman abstention proved protracted and expensive in practice. Id. 326. 90. at 317. the parties could return to the federal court for decision of the federal issues. 101 (1980). reducing the delay. Arizona. concentrating all direct review of such orders in the state court of one county. Allen v. McCurry. the Pullman mechanism remitted parties to the state courts for adjudication of the unsettled state-law issues. . 1055 (1997). 449 U. thorough system of administrative and judicial review of the commission’s orders. .553 Burford Abstention In Burford v. state certification procedures be used instead of Pullman abstention. at 1073. Attractive in theory because it placed state-law questions in courts equipped to rule authoritatively on them. 556. dispositive questions of state law to the highest court of the state for authoritative construction. Id. for it entailed a full round of litigation in the statecourt system before any resumption of proceedings in federal court. 554.. Id.S. 315 (1943). where available. and increasing the assurance of gaining an authoritative response. . 319 U. 555.S. 553. Ct. If settlement of the statelaw question did not prove dispositive of the case. State certification procedures allow federal courts to directly certify unsettled. Designed to avoid federal-court error in deciding state-law questions antecedent to federal constitutional issues. 552 the Supreme Court suggested that. 117 S. at 324. .

1712. v. 559. 564. 560. “a sound respect for the independence of state action requires the federal equity court to stay its hand. Id. . 1728 (1996). 563. at 341. the Court found the district court’s remand order to be “an unwarranted application of the Burford doctrine. . Council of City of New Orleans (NOPSI). 561. fully preserved” in the Supreme Court.S. . Quackenbush v. The federal court dismisses the action in favor of state administrative and judicial review of the issues.SECTION 1983 LITIGATION state administrative agency . 562. 102 . at 362. Inc. Id. Allstate Ins. by the Federal Energy Regulatory Commission for the Grand Gulf Reactor.. Id. 563 Where damages were being sought. Given the facts of the case before it. 117 S. the Court found it unnecessary to decide whether a more limited “abstention-based stay order” would have been appropriate.559 In New Orleans Public Service. Id. 558. Id. 491 U. Co. at 333–34. with “ultimate review of the federal questions .”557 Thus. Ct. where complex administrative procedures have been developed in an effort to formulate uniform policy in an area of local law.” 558 Unlike Pullman abstention. Id. 350 (1989). along with other utility companies. Id. NOPSI involved a refusal by the New Orleans City Council to allow NOPSI to get a rate increase to cover additional costs that had been allocated to it. . so clearly involve basic problems of Texas policy that equitable discretion should be exercised to give the Texas courts the first opportunity to consider them.”564 557.”562 The Court has held that the power to dismiss or remand a case based on Burford abstention principles exists only where the relief sought is equitable or otherwise discretionary in nature. or even in all cases where there is a ‘potential for conflict’ with state regulatory law or policy. at 364. it does not require abstention whenever there exists such a process. at 332. 560 the Court clarified that “[w]hile Burford is concerned with protecting complex state administrative processes from undue federal interference. Burford abstention does not anticipate a return to the federal district court.”561 In NOPSI the Court emphasized that the primary concern underlying Burford abstention is the avoidance of federal disruption of “the State’s attempt to insure uniformity in the treatment of an essentially local problem.

See. 37 (1971). as one commentator has noted. a basic doctrine of equity dictated that no injunction should be granted “when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.S.C. second. and in whatever manner and against whomever an effort may be to apply” (id. an adequate remedy was available in the pending state prosecution. Berryhill. 569.” 569 The Younger doctrine has been extended substantially beyond the context of prohibiting injunctions against pending state criminal pro565. Thus.CHAPTER 9: ABSTENTION DOCTRINES Younger Abstention In Younger v. § 2283 (1994) provides: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress. 567. at 53–54) (internal quotation marks and citations omitted). at 48–49). sentence and paragraph. Foster. More importantly. the Court emphasized the notion of “comity. The Court noted three “extraordinary circumstances” in which a federal court need not defer to pending state court proceedings: first.” Erwin Chemerinsky. where the state is engaged in a “bad faith” prosecution in order to harass the federal plaintiff. by reason of bias. with no purpose or expectation of obtaining a conviction (id. While these three “extraordinary circumstances” were identified as exceptions to the application of Younger abstention. or when necessary in aid of its jurisdiction. In Mitchum v. to adjudicate the issues pending before it). 565 the Supreme Court held that a federal district court could not enjoin state criminal proceedings pending in state court when the federal suit was commenced.. where the pending state proceedings will not afford an adequate opportunity to vindicate the federal plaintiff’s constitutional rights (id. 564 (1973) (Younger held inapplicable because state board of optometry was incompetent. 401 U. Id. Younger.S. 103 . at 41. 28 U.S. at 43–44.S. Id. “each of them is very limited.567 Rather.4 (1994).g. at 44.” or “Our Federalism. but it is quite close. 566. where a state statute is “flagrantly and patently violative of express constitutional prohibitions in every clause.”568 Because the federal plaintiff could raise and vindicate his federal constitutional rights in the course of the state criminal proceeding.566 The Court made clear that its decision was not based on an application of the Anti-Injunction Act. 407 U. 568. at 49). Younger abstention operates as an independent bar to the enjoining of state court proceedings.” a system that guards against undue interference by the national government with “the legitimate activities of the states. Younger is not an absolute ban on federal court injunctions. finally. or to protect or effectuate its judgments. 401 U. Gibson v. 411 U. e. the Court held that § 1983 is an expressly authorized exception to the Anti-Injunction Act. Harris.S. 225 (1972). Federal Jurisdiction § 13.

422 U. the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. the Court unanimously held that “federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute .S. must be read in conjunction with its subsequent decision in Hicks v.” Id. The Court held in Heck that when a state prisoner seeks damages in a § 1983 suit. however. Noting that the relevant principles of equity.8 (1994) (“[I]f a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial. Id. Ltd. 422 U. Inc. Salem Inn.. 484 U. 104 . or state habeas action. 571. . In Steffel v. Ct. at 475. 420 U.573 In a number of decisions.S.”571 While the Supreme Court has not directly addressed the question of whether Younger applies when a federal plaintiff is seeking only monetary relief with respect to matters that are the subject of a state criminal proceeding. Pursue. Mackell.”Id. if it would. 572 it has implied that Colorado River abstention might be appropriate in such situations. See Heck v.” Id. at 349. the Court held that a district court “has no discretion to dismiss rather than to stay claims for monetary relief that cannot be redressed in the state proceeding. 2373 n. 332 (1975). Humphrey. 66 (1971). holding that where state criminal proceedings are commenced against a federal plaintiff after the federal complaint has been filed but “before any proceedings of substance on the merits have taken place in the federal court. . at 2373.. 572.” (citing Colorado River)). Maynard. 922 (1975)) or permanent injunctive relief (see Wooley v. Miranda. the Court addressed the issue of the availability of declaratory relief when no state criminal prosecution is pending.574 the Court has extended the application of Younger to bar federal interference with state civil proceedings. Thompson. 401 U. beginning with Huffman v. Id.” because 570. The Court has likewise held that the granting of preliminary injunctive relief (see Doran v. 2364. “where an injunction would be impermissible under [Younger] principles. 114 S.S. the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. 592 (1975).” the Younger doctrine applies “in full force. 705 (1977)) is not barred by Younger principles when no criminal proceeding is pending. comity. 430 U.S. 415 U.S. In Samuels v. In Deakins v. 573.S. and federalism carry little force in the absence of a pending state proceeding. 570 the Supreme Court held that in federal cases where a state criminal prosecution had begun prior to the federal suit. 193 (1988). at 202. In Huffman. Monaghan. . abstention may be an appropriate response to the parallel state-court proceedings.SECTION 1983 LITIGATION ceedings. The Court’s decision in Steffel. appeal. the Court noted that the civil nuisance proceeding at issue in the case was in important respects “more akin to a criminal prosecution than are most civil cases.S. 574. 452 (1974). declaratory relief should ordinarily be denied as well. at 73.

. 1. 457 U. Id. 430 U. the Court underscored the judicial nature of the proceedings. 335 (1977) (holding that principles of “comity” and “federalism” applied to a case where the state was not a party. v.S.S. 457 U. 420 U. observing the state’s interest in protecting “the authority of the judicial system. 477 U. Vail.S. But see NOPSI. 423 (1982). Pennzoil Co. See also Juidice v. Inc. 576. In Moore v. 350. and the temporary removal of a child in a child abuse context was in aid of and closely related to enforcement of criminal statutes. 578. 431 U. Dayton Christian Schools. Huffman.S.S. at 444.” Ohio Civil Rights Comm’n. In holding Younger applicable. Sims.. and the proceeding itself was in aid of and closely related to criminal statutes. 481 U.] began before any substantial advancement in the federal action took place[. Id.S. at 607. the Court treated the case as governed by Huffman because the state was a party to the state proceedings in question. 442 U. In Ohio Civil Rights Commission v.S.S.S.CHAPTER 9: ABSTENTION DOCTRINES the state was a party to the proceeding. and the availability of an adequate opportunity for the representation of constitutional claims in the process.. while refusing to make any general pronouncements as to Younger’s applicability to all civil litigation. 415 (1979). In Middlesex County Ethics Commission v.12 (1987) (reversing lower court’s granting of federal court injunction against a state court requirement that Texaco post bond in excess of $13 billion in order to prevent the execution of a judgment against it while an appeal was pursued. the “extremely important” state interest involved.575 Thus. 105 . the Court emphasized that the application of Younger to pending administrative proceedings is fully consistent with the rule that litigants need not exhaust administrative remedies before they can bring a § 1983 suit in federal court (see Patsy v.578 575. holding that the rationale of Younger applied to this civil proceeding. 477 U. Hernandez. so that its orders and judgments are not rendered nugatory”). 619 (1986). 368 (1989) (holding that Younger does not apply to state judicial proceedings “reviewing legislative or executive action”). 13–14 & n.576 Younger has been applied to prohibit federal court interference with pending state administrative proceedings. because “the administrative proceedings here are coercive rather than remedial[. 491 U. In Trainor v. 577. Board of Regents of Fla. the Court held that the principles of Younger and Huffman were broad enough to apply to interference by a federal court with ongoing attachment proceedings “brought by the State in its sovereign capacity” to vindicate important state policies. 434 (1977). Garden State Bar Ass’n. 327. Texaco Inc.] and involve an important state interest. but where the state’s judicial contempt process was involved and the state’s interest in the contempt process is of “sufficiently great import to require application of the principles of Younger”). the Court held that the district court “should have applied the tests laid down in Younger” in deciding whether to enjoin the state civil nuisance proceeding. 496 (1982)). 577 the Court was faced with the question of whether pending state bar disciplinary hearings were subject to the principles of Younger.S. at 604.

Id. at 817 (citing Kerotest Mfg. 586 at 627–28 n. at 818. The federal district court subsequently dismissed the suit.S. as does abstention.S. Id. Id. United States.S. 268. Carland. 579 the Supreme Court confronted the question of what a federal court should do when there are duplicative proceedings occurring in state court.585 The Court identified four factors to be considered in determining whether such exceptional circumstances exist: (1) problems created by two courts exercising concurrent jurisdiction over a res. 584. at 805. Id. 424 U. 583.581 Although the Supreme Court found that none of the socalled “abstention doctrines” applied to the facts of this case. Id. at 817 (citing McClellan v. Co.S. Id. at 806.”583 The Court noted the general rule that “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction. (2) the issue of the relative inconvenience of the federal forum. Co. 586.580 Soon thereafter. 579. 581. 585. exceptional circumstances that might permit dismissal of a federal suit in the face of concurrent state court proceedings. 800 (1976). 106 .SECTION 1983 LITIGATION Colorado River Abstention In Colorado River Water Conservation District v.582 it held that dismissal was proper “on another ground—one resting not on considerations of state–federal comity or on avoidance of constitutional decisions. 180. 580.. 582.2. 217 U. C-O-Two Fire Equip. v. 183 (1952)). Colorado River.”584 There are. 282 (1910)). and (4) the order in which the state and federal forums obtained jurisdiction. but on considerations of wise judicial administration. a defendant in the federal suit moved to join the United States in a state court proceeding adjudicating the same water rights. The government had brought suit seeking a declaration of water rights on its own behalf and on behalf of certain Indian tribes. abstaining in deference to the state court proceedings. 424 U. 342 U. (3) the goal of avoiding piecemeal litigation. however. at 813–17. giving regard to conservation of judicial resources and comprehensive disposition of litigation.

1 (1983). insofar as it assures that the federal action can proceed without risk of a time bar if the state case. at 2138–43. Mercury Construction Co. 587 the Court underscored the need for exceptional circumstances before a federal court surrenders its jurisdiction over a case on the ground that there is a duplicative proceeding occurring in state court.S.S.S. 591. 2143 n. the preferable course would be to stay. Ct.. . 316 U. for any reason. Ct. 592 the Supreme Court resolved a conflict among the circuits regarding the standard to be applied by a district court in deciding whether to stay a declaratory judgment action in deference to parallel state proceedings. a stay will often be the preferable course. Id.. had not been supplanted 107 . See Wilton v.591 In Wilton v. the Court announced that another factor to be given great weight in the balancing of considerations is the presence of a question of federal law. justify a standard vesting district courts with greater discretion in declaratory judgment actions than that permitted under the ‘exceptional circumstances’ test of Colorado River and Moses H. 570 n. the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration. 1995) (noting that “where the basis for declining to proceed is the pendency of a state proceeding.21 (1983). San Carlos Apache Tribe.CHAPTER 9: ABSTENTION DOCTRINES In Moses H. 463 U. 115 S.S. Seven Falls Co. of America. at 25. 590. 589. 463 U. . fails to resolve the matter in controversy”). 26. Id. San Carlos Apache Tribe. 2137 (1995). . The Court held that “[d]istinct features of the Declaratory Judgment Act .. Excess Insurance Co. at 560. Arizona v. . 2137. The Court found that the discretionary standard announced in Brillhart v. 592.S. 593. 491 (1942). it is clear that “resort to the federal forum should remain available if warranted by significant change of circumstances.589 While the Court left open the question of whether the proper course to take when employing Colorado River abstention is a stay or a dismissal without prejudice. Cone Memorial Hospital v. To safeguard against the running of the statute of limitations should the state litigation leave some issues unresolved. . 545.”590 A dismissal or stay of a federal action is improper unless the concurrent state action has jurisdiction to adjudicate the claims at issue in the federal suit.” 593 587. 115 S. Cone .2 (U. Id. Seven Falls Co. In the declaratory judgment context. 460 U. rather than dismiss the federal action. 588. The case involved parallel state and federal proceedings addressing the issue of whether a contract between the parties was subject to arbitration.588 In addition. at 23.

. 460 U. like Wilton. 72 F. See also NYLife Distributors. Gulfstream Aerospace Corp.594 However. v.S.S. Inc.3d 371. 10 (1983). Moses H. 271. 1. Cone. involved an insurer seeking a federal declaratory judgment of nonliability in the face of a state court coercive suit seeking coverage under the policy. Inc. an order refusing abstention under Colorado River is “inherently tentative” and is not immediately appealable under the collateral order doctrine. Adherence Group. 485 U. 108 . Co. Mercury Constr. 595.SECTION 1983 LITIGATION A stay order granted under Colorado River is final and immediately appealable. Mayacamas Corp. v.. v. Brillhart.. 1995) (holding that “the discretionary standard enunciated in Brillhart governs a district court’s decision to dismiss an action commenced under the interpleader statute during the pendency of parallel state court proceedings”). 382 (3d Cir.595 by the “exceptional circumstances” test of Colorado River and Moses H. Cone Mem’l Hosp. 594. 278 (1988).

such as lost earnings. Legal relief may take the form of nominal. . the level of damages is ordinarily determined according to principles derived from the common law of torts. actual damages will not be presumed in a procedural due process case and. Memphis Community Sch. compensatory. 477 U. 435 U.S. Nominal damages reflect the violation of a right with no proven actual injury. . 306 (1986). and loss of earning capacity. 598. v.S. Dist.”597 Compensatory damages generally fall into one of three categories: special. 299. general.. Piphus. Stachura. medical expenses. 229. the plaintiff will be entitled only to 596. “When § 1983 plaintiffs seek damages for violations of constitutional rights. Inc. 109 . 598 the Supreme Court held that “although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983. 247 (1978). or nominal damages.” 599 Thus. as well as punitive damages. without proof of damages. is a federal rule responsive to the need whenever a federal right is impaired. Id. Special damages relate to specific pecuniary losses. 599. General damages include compensation for physical pain and suffering. 396 U. In Carey v.Chapter 10 Remedies Compensatory Damages The full range of common-law remedies is available to a plaintiff asserting a claim under § 1983. 597. as well as emotional distress. 240 (1969). at 264. Little Hunting Park.”596 The Supreme Court has stressed. Sullivan v. neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused. however.S. that “[t]he rule of damages .

at 311 & n.g. 56 (1983).S. presumed damages may be appropriate “[w]hen a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish. 607. 247. 867 (10th Cir. 299 (1986). Id.14. 605.603 The problem identified in Stachura was that the district court’s jury instructions allowed for an award of damages that was neither compensatory nor punitive.608 A local government unit is immune from punitive damages under § 1983.. or when it involves reckless or callous indifference to the federally protected rights of others. while presumed damages ordinarily will not be available in § 1983 actions. at 254.”607 As is the case with compensatory damages. Fact Concerts. 110 .” 601 The Court relied on Carey and extended its holding to a case involving the violation of a plaintiff’s First Amendment rights in Memphis Community School District v. at 267. Smith v. Inc. 453 U. City of Newport v. 603. 602. 608. 30. at 310 n. Wade.”605 Thus. federal law governs the availability of punitive damages in a federal civil rights action under § 1983. 461 U. 1989).S. Wulf v. Id. at 310.S.2d 842. 477 U..604 The Court distinguished the line of common-law voting rights cases in which presumed damages have been awarded “for a nonmonetary harm that cannot easily be quantified.602 In Stachura. City of Wichita.SECTION 1983 LITIGATION “nominal damages not to exceed one dollar. See. 606. the Supreme Court held that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages” in § 1983 cases. 883 F. Stachura. 271 (1981). 609. 604. Id.” 600 The Court noted in Carey that the primary purpose of the damages remedy in § 1983 litigation is “to compensate persons for injuries caused by the deprivation of constitutional rights. Id. Id.13. at 310–11. Id.”606 Punitive Damages A plaintiff may be awarded punitive damages against an individual defendant “when the defendant’s conduct is shown to be motivated by evil motive or intent.609 600. but was based solely on the perceived “value” or “importance” of the particular constitutional right violated. e. 601.

S. the jury was informed that the imposition of punitive damages was not compulsory. v. Gore. 499 U. Haslip. 1604 (1996) (“As in Haslip. Alliance Resources Corp. Finally. at 19. we are fully convinced that the grossly excessive award imposed in this case transcends the constitutional limit. 1 (1991). but rejecting the argument that the $10 million punitive damages award in this case was so “grossly excessive” that it violated substantive due process). In assessing the reasonableness of an award of punitive damages. at 16–18. as well as the desirability of discouraging others from similar conduct. 1589. Id. Id. the defendant’s awareness. The Court focused on the jury instructions as to the purpose of punitive damages. 610 the Supreme Court established guidelines for determining whether punitive damages awarded under state law violated substantive due process.CHAPTER 10: REMEDIES In Pacific Mutual Life Insurance Co. the adequacy of procedures for the trial court’s review of the award. (b) the degree of reprehensibility of the defendant’s conduct. and the adequacy of state appellate court review. Unlike that case. Ct. and the existence 610. the following criteria were used by the state appellate court and approved by the Supreme Court: (a) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred.S. Haslip. Furthermore. 462 (1993) (agreeing that several of the Court’s opinions have recognized that the Fourteenth Amendment places substantive limits on punitive damages awards. the jury was advised that it must consider the character and degree of the wrong as shown by the evidence and the necessity of preventing similar wrong. 509 U.”). 613. See also BMW of North Am. v. TXO Prod. we are not prepared to draw a bright line marking the limits of a constitutionally acceptable punitive damages award. 453–54.. however.611 The jury instructions approved by the court in Haslip informed the jury that the purpose of punitive damages was deterrence and retribution. 111 . 116 S. Inc. v. the duration of that conduct.. any concealment. 443. Corp. 499 U. 611. The factors to be considered by the trial court included the culpability of the defendant’s conduct.612 The Court found the procedures that had been established by the Supreme Court of Alabama for post-trial scrutiny of punitive awards ensured meaningful and adequate review of punitive damages by the trial court.613 The final safeguard against irrational punitive awards was in the criteria applied by the state appellate court. 612.S.

1259 (9th Cir. . 993 F. Id.. 436 U.2d 1244. 1993) (burden on defendant to present evidence of financial circumstances at trial) and Zarcone v. Perry.2d 1244.2d 459. See Morgan v. 1993) (citing cases).2d 294. 618. where § 1983 does not provide suitable remedies for constitutional violations.g. 1992) (Higginbotham. Macri. Macri. 1993) (“The principles of Haslip are applicable .615 While Haslip reinforces the principle that juries must take the financial condition of the defendant into account when assessing the punitive damages award. 572 F. and (g) the existence of other civil awards against the defendant for the same conduct. 298 (2d Cir. 997 F. 615.S. to punitive damages imposed by federal courts for violations of federal law. While the Supreme Court has not reviewed a case raising a claim of excessiveness in a punitive damages award where the award was made in a federal court on a federal cause of action. (e) all the costs of litigation. the federal courts are instructed to turn to state law “so far as the same is not inconsistent with the Constitution and laws of the United States.2d 52.616 Survival and Wrongful Death Actions Under § 1983 As noted in Chapter 8 (Procedural Defenses). . See 42 U. at 21–22. The majority of courts of appeals agree that punitive damages may be appropriate even where only nominal damages are awarded. 483. King v.”). 1255 (9th Cir. 56 (2d Cir. 1978) (burden on defendant). (f) the imposition of criminal sanctions on the defendant for its conduct. (d) the “financial position” of the defendant..SECTION 1983 LITIGATION and frequency of similar past conduct. Woessner. 993 F. 1993) (burden on plaintiff with respect to state law claims) and Keenan v. at least one court of appeals has applied the analysis set out in Haslip to assess the constitutionality of punitive damages awards made pursuant to federal law in federal courts. City of Philadelphia.2d 294. 297. See. 616. Wegmann. Woessner.618 the Supreme Court held that state law on survivorship of 614. dissenting) (plaintiff should have burden of producing evidence of defendant’s financial condition).S. 484 (3d Cir. 997 F. with Morgan v. 584 (1978). (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss. these also to be taken in mitiga614 tion.”617 In Robertson v. Compare King v. e. 983 F.C. 298 (2d Cir. J. there remains disagreement as to whether the plaintiff or the defendant has the burden of producing evidence as to the financial position of the defendant. these to be taken in mitigation. § 1988(a) (1994). 617. 112 .

Steinglass.622 the Court of Appeals for the Fifth Circuit made no distinction between the state’s survival statutes and its wrongful death statutes for purposes of the § 1983 action. O’Shea v. Ct. 624. 481 (1997). Injunctive Relief To obtain injunctive relief in federal court. 1420 (9th Cir. Id. The Court held that Lyons 619. 414 U. cert. Lyons. 488. 95 (1983). with Bell v.S. 113 . Compare Shaw v. 973 F. 1992) (quoting Crumpton v. Id. As one court has noted. City of Milwaukee. 627. [and] has no adverse effect on the policies underlying § 1983. 921 (1961). 368 U. 293 F. 947 F. 625.”625 but dismissed the appeal for lack of jurisdiction. Gates. Littleton.2d 1205 (1984).CHAPTER 10: REMEDIES claims should control so long as that state law is not generally “inhospitable to survival of § 1983 actions . 627 the plaintiff sought to enjoin the future use of a chokehold to which he had been subjected when stopped by the police. Id. 620.2d 386. 559 (1985). concluding that “utilization of local death and survival statutes” served the goal of making federal civil rights legislation “fully effectual. Cherry. 13 F. .”621 In a leading circuit case.S. denied. . See generally Stephen L.2d 1418. 461 U. City of Tarrant. it indicated that the situation might be different where the “deprivation of federal rights caused death. under . Brazier v. at 594. 1994).2d 401 (5th Cir. 626. at 409. a plaintiff must demonstrate “the likelihood of substantial and immediate irreparable injury. Section 1983 that the death in question resulted from a deprivation of federal rights. L. 1991)). 118 S. 60 Ind. Id. and the inadequacy of remedies at law.). Wrongful Death Actions and Section 1983.J. 390 (5th Cir.”620 The Supreme Court has not resolved the issue of whether wrongful death claims may be pursued under § 1983.S. 623. 746 F. 621. 624 the Supreme Court had granted certiorari to decide whether the Alabama Wrongful Death Act “governs recovery when a decedent’s estate claims.3d 791 (4th Cir. .”623 In Jefferson v.”619 Although the Court held applicable a state law that caused the § 1983 action to abate in that case.’ over which the circuits have divided. Rhyne v.”626 In City of Los Angeles v. Henderson County. Stroud. 502 (1974). 622. . at 484. this question “has ‘generated considerable confusion and disagreement.

Speculation or conjecture that he might be subjected to the chokehold at some time in the future was not sufficient to demonstrate “any real or immediate threat that the plaintiff [would] be wronged again.S. at 106 (emphasis in original). 414 U. at 111. the legality of the challenged conduct could be litigated in the plaintiff’s claim for damages.. 461 U. courts of appeals have found standing to seek injunctive relief where the conduct to be enjoined has been authorized by policy or practice. 799 F. Nelson. does not require that the court become engaged in intrusive oversight of governmental activity. 114 . Goode.631 Declaratory Relief Under the Declaratory Judgment Act. unlike injunctive relief. 488 (1974) and Rizzo v.” or that “the City ordered or authorized police officers to act in such manner. 632.2d 547 (9th Cir.3d 1332 (11th Cir.S. See generally “Chapter 5: Governmental and Supervisory Liability.C. e. Servs..”628 Furthermore. 631. Lyons.”633 Declaratory relief is available even when an adequate remedy at law exists.632 given the existence of “a case of actual controversy within its jurisdiction.S. City of Huntsville. 30 F. 658 (1978).”629 Following Lyons. § 2201 (1994). 629. Church v. Thus. Department of Soc. 28 U. 1994). 362 (1976). there existed an adequate remedy at law. A declaratory judgment rules on the lawfulness of the policy or conduct challenged by the plaintiff.g. The Court in Lyons suggested that the plaintiff would have had standing to seek injunctive relief if he had alleged either that “all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter. Monell v. 630. courts should look to cases interpreting the scope of “official policy or custom” in the context of asserting claims for damages against a governmental unit. 436 U.” a federal court “may declare the rights and other legal relations of any interested party seeking such declaration.630 In determining what constitutes sufficient “official authorization” to satisfy the Lyons requirement for seeking injunctive relief. The Court relied on its prior decisions in O’Shea v. Id.” supra. 1986). 633. but. 423 U.S.SECTION 1983 LITIGATION did not satisfy the prerequisites for seeking equitable relief. International Molders & Allied Workers v. See.S. Littleton. A plaintiff need not make a showing of irreparable injury 628. Id.


to get declaratory relief.634 A declaratory judgment, like any other final judgment, has full res judicata effect.635

Abstention Doctrines and Statutory Bars to Relief Under § 1983
As explained in Chapter 9 (Abstention Doctrines), there are certain circumstances under which a federal court will abstain from exercising its jurisdiction in a § 1983 action. In such cases, plaintiffs may be forced to pursue their remedies under state law. In addition, the Tax Injunction Act636 prohibits federal courts from enjoining “the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such state.” In California v. Grace Brethren Church, 637 the Court held that the Tax Injunction Act applied to federal declaratory judgment suits challenging the constitutionality of state tax laws.638 In Fair Assessment in Real Estate Ass’n v. McNary, 639 the Court found that the principle of comity operated to preclude a damages action under § 1983 contesting the validity of a state tax system.640 Finally, in National Private Truck Council, Inc. v. Oklahoma Tax Commission, 641 the Court resolved a conflict among the state courts “as to whether, in tax cases, state courts must provide relief under § 1983 when adequate remedies exist under state law.”642 The Court held that “[w]hen a litigant seeks declaratory or injunctive relief against a state tax pursuant to § 1983 . . . state courts, like their federal counterparts, must refrain from granting federal relief under § 1983 when there is an adequate legal remedy.” 643

634. Steffel v. Thompson, 415 U.S. 452, 466–67 (1974). 635. See, e.g., Green v. Mansour, 474 U.S. 64 (1986). 636. 28 U.S.C. § 1341 (1988). 637. 457 U.S. 393 (1982). 638. Id. at 407–11. 639. 454 U.S. 100 (1981). 640. Id. at 116. 641. 515 U.S. 582 (1995). 642. Id. at 585–86. 643. Id. at 592.



Attorney’s Fees
The Civil Rights Attorney’s Fees Awards Act of 1976644 provides that a prevailing party in actions brought under specified civil rights statutes, including § 1983, may be entitled to an award of attorney’s fees as part of the costs of litigation. The Act has generated a tremendous volume of litigation and is treated as the subject of a separate monograph on attorney’s fees.645

Prison Litigation Reform Act (PLRA)646
In any action involving prisoners’ rights, there are likely to be substantial limitations placed on the availability and scope of the remedies sought. While a discussion of the various provisions of the PLRA is beyond the scope of this monograph, the importance of consulting the Act in appropriate cases cannot be overemphasized. For example, the PLRA precludes the bringing of a civil action by a prisoner “for mental or emotional injury suffered while in custody without a prior showing of physical injury.”647 Exhaustion of administrative remedies is required in actions relating to prison conditions.648 The availability of attorney’s fees is significantly restricted.649 Injunctive relief in prison reform litigation must be

644. 42 U.S.C. § 1988(b), amended by Pub. L. No. 104-317, Title III, § 309(b), 110 Stat. 3853 (119), provides:
(b) Attorney’s fees In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title [Violence Against Women Act], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

645. See generally Alan Hirsch & Diane Sheehey, Awarding Attorneys’ Fees & Managing Fee Litigation (Federal Judicial Center 1994). 646. On April 26, 1996, Congress enacted the Prison Litigation Reform Act as Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996). 647. 42 U.S.C. § 1997e(e) (Supp. 1997). See, e.g., Zehner v. Trigg, 133 F.3d 459, 464 (7th Cir. 1997) (upholding constitutionality of provision). 648. 42 U.S.C. § 1997e(a) (Supp. 1997). 649. 42 U.S.C. §§ 1997e(d)(1)–(4) (Supp. 1997).



narrowly drawn to remedy violations of federal rights.650 Government officials may seek the immediate termination of all prospective relief that was awarded or approved before the enactment of the PLRA without a finding by the court that “the relief is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right.”651

650. 18 U.S.C. § 1362(a) (Supp. 1997). 651. 18 U.S.C. § 3626(b)(2). This provision has been the subject of much recent litigation. The courts of appeals that have addressed the constitutionality of the provision have uniformly upheld the section, but the rationales have varied and the issue will no doubt wind its way to the Supreme Court. See, e.g., Inmates of the Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997); Benjamin v. Jacobson, 122 F.3d 1055 (2d Cir. 1997); Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997); Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996), cert. denied , 117 S. Ct. 2460 (1997). See also James v. Lash, 965 F. Supp. 1190 (N.D. Ind. 1997); Jensen v. County of Lake, 958 F. Supp. 397 (N.D. Ind. 1997). One court has struck down the termination provision as violating separation of powers principles. Hadix v. Johnson, 947 F. Supp. 1100 (E.D. Mich. 1996).



1997). Freestone.3d 1186 (3d Cir. 266 (1994). Ct.S.3d 56 (4th Cir.. 73 Bogle v. 316 U. v. Finkel. 87. 403 U. 1995). 78 Blessing v. 61. 74 F. 31. 1353 (1997).S. 107–08 Briscoe v. 429 (1993). District of Columbia. 1992). Six Unknown Named Agents. 26. 81.S. 1996). Meadows. Am. 85 Brandon v. 17 119 . McCurry. Ct. 398 U. Ct. Holt. 5. 57 Auriemma v. Co. 18. 463 U. of Am. 44. Monroe Township.S. 545 (1983). 14–15 Brower v. 117 S. 28 Brown v. 38 Brazier v. 68 F. 14 Bogan v. Brown..3d 46 (2d Cir. 48 Atchinson v.S. 1995). San Carlos Apache Tribe. Cherry. v. Creighton.. 68 Behrens v.S. 90.3d 709 (5th Cir. 966 (1998). 564 (1972). Supp. 445 U. Excess Ins. 96. 63–64 Anderson v. 491 (1942). 8 Albright v. 1991).2d 1205 (1984).S. 957 F. 449 U. 122 F. Block. 32–35 Alexander v. 119 F. 11 BMW of N. 1995). Inc. 1994).. Rice. 75 Arizona v. 834 (1996). 469 U. Sexy & Safer Prods. 56 Bivens v. Reynolds. 457 U.D. 593 (1989).S. DiFasi. 953 F.S. 1996).. 408 U. 489 U. Jacobson. 50 F. 66 F. 101 Allen v.3d 449 (9th Cir. 144 (1970). 50 Blum v. 460 U. Inc. 67 Baker v. City of Warner Robins. 62–64 Board of Regents v.Table of Cases Adickes v. 1997).3d 418 (D. 483 U. Inc. 14 F. Gore. 940 F. LaHue. 83. 510 U. 116 S. 1997).2d 1211 (9th Cir.. 87. Byers & Anderson. 388 (1971).S. 88 Antoine v. 113 Benjamin v. 635 (1987). Arizona. 1995). 91–92 Bell v. Pelletier. Cir. 1993). Ga. 464 (1985). 112 F.C. 73 F. 118 S. Ct.S. 62 F. 56 Branti v.3d 837 (10th Cir. 117 Bennett v. Scott-Harris. 101 Arkansas Medical Soc’y. 58–59 Branch v. Ct. 113 Brillhart v. 1563 (M.3d 1055 (2d Cir. 1589 (1996). 1997).2d 397 (7th Cir. 325 (1983). 1961). 507 (1980).3d 519 (8th Cir. 90 (1980). Pippin. 63 Biggs v. 111 Board of County Commissioners v. 116 S. 746 F. 82. Ieyoub.S. 48–49. Muskogee. County of Inyo. Oliver. City of Milwaukee. 117 S. 1055 (1997). 23 Bouman v.2d 401 (5th Cir.S.3d 578 (5th Cir. 6 F. Inc. 78 Brooks v. Ct. Hot. 1382 (1997). Yaretsky. 9. 991 (1982). 508 U. 27. 293 F.3d 525 (1st Cir.S. 18. 17 Allen v. Roth. Tunnel. Kress & Co. 107 Arizonans for Official English v. 84. 117 S.

808 (1985).2d 1164 (8th Cir. 67 F. Sheldon. 35 Cornelius v. City of Burbank. 1995).2d 348 (11th Cir. 27 F.S. v. 796 (1986).. 424 U.S. 8 Butz v. Higgins. 59–62. 104.S. 41 F. 112 (1988). 113 S. 1989). 798 F. 118 S.S. 1991).S. 745 F. 880 F. 17.3d 73 (2d Cir. 365 U. 378 (1989).S. 63. Gates. 75 California v.SECTION 1983 LITIGATION Buckley v. 40 Cook v. 499 U. 532 (1985). 114 Cinevision Corp. 69 City of Los Angeles v. 67 Cleavinger v. 1991).2d 1283 (7th Cir. 454 U. 461 U. 815 F. 113–14 City of Newport v. 76–77 Burton v.S. Tuttle. 991 F. 1584 (1998). Town of Highland Lake. Sch. v. 461 U. Milwaukee. 523 U. 247 (1978). 75 Cleveland Bd. Reed. 2606 (1993). Piphus. 15 Cornfield v. Meyers.S.S. 16 Clinton v. 85.3d 48 (5th Cir. 18.S. Dist. Harris. Monaghan. United States.3d 1432 (9th Cir.2d 1418 (9th Cir. Heller. 110 City of Oklahoma City v. 14. 66–67 City of St. 58. 72 City of Canton v. 478 (1978). 104 Dennis v. Lyons. Praprotnik. 107. 715 (1961). 66 Clay v. 24 Davis v. 115 California v. 474 U. Praprotnik. Conlee. Ct. 55 City of Los Angeles v. 800 (1976). 101–02 Burns v. 500 U. 59 City of St. 1994). 99.. 337 U. Fitzsimmons. 106.S. Britton. 1991). Gates. 65 F. Beneficial Indus. Ct. Woods. 78. 61–62 Dawson v. City of Harker Heights. 1994). 193 (1985). 230. Carlsbad Mun. Grace Brethren Church. 138 (1983). 247 (1981). 315 (1943). 541 (1949). 1993). United States Bureau of Prisons.2d 1168 (8th Cir.2d 247 (9th Cir. Jones. 457 U. 15 Burford v. 898 F. Fernandez. 438 U.S. 484 U. 61 Crawford-El v.2d 1473 (9th Cir.S. 108 Connick v. 115 (1992).. 1984). 13. 55 Chardon v.2d 560 (9th Cir.M. 1995). Louis v. 6 (1981).S. 91 Collins v. 62 Church v. 453 U. 96 Chew v. 344 (1986). 40–41 120 . 489 U. —. 99. 39.S. 478 (1991). Loan Corp. 1995). 86. Gregory. 63. Cannon. v.2d 1235 (D. 77 Bulger v. Ct. Fact Concerts. 1995). Saxner. 930 F. 21 Deakins v.S.S. Economou. 327 (1986). 1986). 193 (1988). 439 (1991). 1987).3d 1383 (8th Cir. 71. 319 U. 13. 32. 886 F. 927 F. 69 F. 474 U. Wilmington Parking Auth. of Educ. 95 (1983). Killeen. 947 F. 1989).2d 1316 (7th Cir. 20 Carey v. 109–10 Chaloux v. 1636 (1997). 117 S. 485 U. City of Huntsville. Inc. 27 Camp v. Hodari D. N. Sun Oil Co.3d 1332 (11th Cir. 498 U.3d 1286 (7th Cir. 474 U. Williams. 30 F.S. 393 (1982). 621 (1991). No. 65. 24. 22–23. 88 Crumpton v. 1994).S. 93 Cohen v. 52 Daniels v. 435 U. 23 Cornell v. 68 Davidson v. 113 Daddow v. Dist.. Louis v. 471 U. 503 U.S.S.S. 24 Colorado River Water Conservation Dist.. Consolidated High Sch. Mason County.S. 470 U. 475 U. Loudermill. 68. 57..S.S.

S. 147 (1981). 490 U. 415 U. 450 U. 635 (1980). 500 U. 1988).S.S. 30. 87 Doe v. 97 (1976). 115 Griffin v..3d 443 (5th Cir. 1995).. 23 Dickerson v. 22.2d 1111 (3d Cir. 36–37. 21 Doe v. 20–21. 117 Gibson v. 103 (1989). Salem Inn. 564 (1973). 66 D.3d 790 (4th Cir.S. Sch.S. Bitzer. 112 F. Claiborne County. 113 F. 1991). Delmore. 510 (1994). Vaughn.S. Memphis Police Dep’t. v. Mansour. Leesville Concrete Co. Brennan. 1996). 117 S. 474 U. Ct. 14 Gulfstream Aerospace Corp. 1584 (1997). Sch. 55 Fair Assessment in Real Estate Ass’n v.S.2d 920 (4th Cir. 37 F. 979 F. 27. 1990). 51 Edmonson v. White. Balisok. 115 Farmer v. 429 U.S. 69 Dominique v. 882 F. 1994). Rogers. 35. 1994). 1807 (1997). 983 F. 20 Dwares v. 23 Garner v.S. Kemp. Los Angeles.S. 1997).2d 94 (2d Cir. 445 (1976).2d 829 (11th Cir.. 510 U. 411 (1964). 651 (1974). 189 (1989). 113 F. 67 Golden State Transit Corp. Sparks. Mayacamas Corp. 427 U. 38 England v.3d 1412 (5th Cir. 489 U. 454 U. 1992). 1993). Connor.. Gamble. 1997). 41. Burns. Berryhill. 219 (1988). Louisiana State Bd. 985 F. 19. 386 (1989). 103 Gilbert v. 100 Estelle v. 427 U.S. 5. 25.2d 553 (1st Cir. Dist.3d 1156 (1st Cir. 1997). 891 F. Haines. 937 F.3d 1081 (8th Cir. McNary. 60 Fitzpatrick v. 75 Fortner v. 1991). 1996). 73 F. Toledo. 1993). 26. 9 Florida Dep’t of Health v. Dist. 89 Forrester v. Branstad.2d 52 (8th Cir. 1989). 22–23 Edelman v.3d 703 (3d Cir.3d 251 (6th Cir.S. 15 F. 1997). 85 Graham v. v. 22 F.3d 1283 (3d Cir.2d 1390 (9th Cir. 10.. Weld. 929 F.2d 1342 (9th Cir. 92 Dimeglio v. 45 F. 18. Homar.S.W. 1970 (1994). 100 (1981). Inc. Ct. City of New York. 122 F.3d 495 (6th Cir. McClellan. 114 S. 79 DeShaney v. 436 U. 117 S. 103 F. 614 (1991). 15 Doran v. City of Vineland (Fagan II).S. 149 (1978). 64 (1986). 51 Floyd v. 64 Doe v. 69 121 . Holloway. 8. 8 F. of Medical Examiners. 58 Gavin v. 24. Ferguson. 52 Flagg Bros.S. 446 U. 449 U. Cartagena. 108 Gutierrez-Rodriguez v.S. Jordan.S. 922 (1975).S. 68. 69 Green v. 83 Elrod v. 35–36 Fagan v. 1990). Ct. 1994). Laws. 485 U. Thomas. 45. 493 U.. Brooks. 29. 422 U. 411 U. 30 Greason v. 375 U. 911 F. v. 48. 32 Elder v. 49 Gomez v. Winnebago County Dep’t of Social Servs. Chester. 19–20. 104 Dotson v.S.S. 11 Edwards v. 85 Freeman v.3d 358 (6th Cir.3d 1214 (11th Cir. 16 Gillette v. Hillsboro Indep. 271 (1988). 347 (1976). v. 21. Florida Nursing Home Ass’n. 24 (1980). 484 U.TABLE OF CASES Dennis v. Taylor Indep.

1997). 1800 (1997). 57 Juidice v. 117 Jett v. 473 U. 112 S. 129 F.S.D. 30. 517 (1984). 420 U. 100 Harris County Comm’rs Court v. 466 U.S. 1190 (N. County of Lake. Ct. 104 Helling v. 877 F. v.S... 2364 (1994). 491 U. 1996).S.. 91 Harman v. Delgado. 800 (1982). Pursue. 306 (1983). 31–32. 327 (1977). Bryant. Palmer. Ct. Adkison. v. 90. 93 Jordan v. 513 U. Nelson. Dist. 92. Vail. 947 F. 380 U. Supp.A. 15 Howard v. 76 Ingraham v. 17 Huffman v. 114 S. 112 S. 1996). Ltd. 113 S. 462 U. 424 U. 117 I. 360 U. Macri. 28. Wis. —. City of Philadelphia. 481 (1997). 29. Fletcher. Jones. 30 (1994). 799 F. 47 Jefferson v. 27 International Molders & Allied Workers v. 1993). 358 (1991). Ct. 117 Jeanine B. 87. 958 F. 528 (1965). Ind. Louisiana. 2151 (1995). 105 Kalina v.S. 68. 21 Inmates of the Suffolk County Jail v. Supp.N. 112 S. Fitzgerald. 53 Heck v. N. 106 King v. Jackson. 502 U. Gomez. 87. 651 (1977). 9. Ct.D. Lash. Port Auth. 342 U.S. 104 Hines v. 1989). 100 Harter v. 1986). 66–67 Johnson v. 82. City of Tarrant.SECTION 1983 LITIGATION Hadix v. Rouse. 52–53 Hicks v. 468 U. 10 James v. 37 Hudson v. Supp.S. 117 S. 113 Jensen v.D. 424 U.2d 294 (2d Cir. 15 F. 1 (1890). Thompson. 1100 (E. Graham.3d 265 (9th Cir.S. 118 S.. 2475 (1993). 81. NLRB. 159 (1985). 77 (1975). 90 Johnson v.. 887 F. 534 (1992). Miranda. 10 Hudson v.S.S. 345 (1974). 430 U. Melo. 104–05 Hunter v. C-O-Two Fire Equip. Johnson. Ct.S. Co. 1992).S.2d 459 (3d Cir.2d 547 (9th Cir.D. Wright.S. 114 Jackson v. Co. 84 Hunter v. Sch. Forssenius. 90.3d 649 (1st Cir. v.S. Ct. 56 Hans v. 134 U. 78 Keenan v. 1994). 115 S. 100 Harrison v. Mich. 167 (1959).P. 96. 502 (1997). 409 (1976). 36 Hess v. 112 122 . 117 Hafer v. Ind.3d 334 (4th Cir. 118 S. Metropolitan Edison Co.3d 333 (4th Cir.S. McMillian. 993 F. 592 (1975).S.S.2d 134 (8th Cir.S. Pachtman. 89 Imbler v. 995 (1992). 1997). 1997). 112 Kentucky v. 1995). Ct. 701 (1989). 56 Kerotest Mfg. 332 (1975). Trans-Hudson Corp. 69 Hudgens v. 51 Haring v. 515 U. Ct.. Dallas Indep. Moore. 419 U. Fankell. Ct. Bryant.S. Prosise. Vernon. 983 F. 420 U. 224 (1991). McKinney. 210 (1984). 430 U.S. 457 U.C. Supp. 397 (N. 108 F. Humphrey. 26. 180 (1952). 507 (1976).A.S. 1268 (E.S. 422 U. 91. 965 F. 1997). 97 Harlow v. 101 F.

68 Lankford v. 115 S. 1993). Switzer. Haskins. 70 (1994). 60 F. 976 F. 1996). 1994). 105 Middlesex County Sewerage Auth. Ct. I). 17 Los Angeles Police Protective League v. 57. 93 McMillian v. 55 Lugar v. v. 51 F. 16. 58 McMillian v. Cir. Bd. Monroe County.2d 1353 (6th Cir. 1993). 504 U.. 299 (1986). 1992). Selsky. 961 (1995). Tarrant County Narcotics Intelligence & Coordination Unit. Chicago Transit Auth. 1993). 922 (1982). Eldridge. 17 Middlesex County Ethics Comm’n v. Zimmerman Brush Co. Grubbs (L. 2068 (1994). Thiboutot. 1996). 1160 (1993). 57 Lebron v. 85 Leatherman v.S. 1995). 966 (1992). 21 Livadas v. 83 Manzano v. 422 (1982). 457 U. 97 McDonald v. City of Hobart.S. 10 F. National Sea Clammers Ass’n. Shelby County Sheriff. Metropolitan Gov’t of Nashville. 96 Miller v. of Educ.2d 1393 (10th Cir. South Dakota Dep’t of Social Servs. 319 (1976). Ct. 1996).3d 1554 (11th Cir.S. 457 U. Carland. Tedder.3d 501 (7th Cir. 28 McKusick v. 106 McDonald v. 1989).3d 192 (5th Cir. v.TABLE OF CASES Kneipp v. 17 McCleary v.3d 283 (10th Cir.. Ct. 455 U. 891 F.W. Borough of Hatboro. 95 F. Garden State Bar Ass’n.S. 115 S.3d 605 (D.3d 1199 (3d Cir. 114 S. 10 F. 1992). 1995). 15 L.3d 274 (10th Cir. 69 Leach v. National R. Scott. 48 Lankford v.3d 1315 (7th Cir. 423 (1982). 466 U. Johnson. 1997). 23 Lake Country Estates. District of Columbia. 5. 27 F.S. 73 F. 465 U.2d 1054 (7th Cir. 954 F. Kesery.3d 1137 (3d Cir.. 1992). 1992). Inc. Edmondson Oil Co. 477 U. 335 (1986). 10 Marshall v.W. City of West Branch. 34 F. Ct. 72 Lampkin v. 75 (1984). 73 F. Doe. Board of Educ. 89 Maine v. 1734 (1997). City of Melbourne. 52. 1996).S. 48 Logan v. Navarro. 48 Martinez v. 748 F.3d 7 (2d Cir. 110 Mertik v. Dist. 88 F. 501 (1946).3d 925 (2d Cir. 1984). 113 S. 217 U. Tahoe Reg’l Planning Agency. 284 (1984). 117 S. New Mexico Corrections Dep’t. 440 U.. Dist. 43 Malley v. v. 111 F. 983 F. 268 (1910). 21–22 Liebson v. 1 (1981). 1995). 1993). Stachura. 87 Mark v. 48 123 . 424 U. Tarrant County Narcotics Intelligence & Coordination Unit. 96 F. 326 U. Ct. Whitburn.S.C. 49–50 Migra v. Gates.S.2d 1241 (6th Cir. 6 Lewellen v. Warren City Sch.S. 84 McClellan v. 995 F.3d 505 (8th Cir. 71 F.S.S.S..2d 1054 (5th Cir. 391 (1979). v. 52 Mathews v.. 53–54 McNabola v.2d 119 (9th Cir. 56 Leatherman v.R. 966 F. Blalock.. 15 Miller v. 448 U. 1994). 1 (1980). 55 Marsh v. 9 Luken v. Passenger Corp. 453 U. 475 U. 5. 23 Mahoney v.S.3d 478 (11th Cir. Briggs. 974 F. 1996). 1993). Alabama.3d 345 (6th Cir. 10 F.2d 292 (7th Cir. 59 Memphis Community Sch. 109.2d 1469 (9th Cir.S. Bradshaw.

108 Mount Healthy City Sch. 429 U. Board of Regents of Fla. 68 Patsy v. Inc. 896 F.. 472 U.3d 1169 (4th Cir. 460 U. 481 U. 989 F. 114 Oviatt v.. Irvis. Oklahoma Tax Comm’n. 414 U. 81. 436 U. 6.. 107 F.3d 29 (5th Cir. Board of Educ. 469 (1986).S. 1 (1981). 2.2d 289 (8th Cir. Inc. 365 U. 14 Pembaur v. 115 NCAA v. 15 O’Shea v. 386 U.S. 107.S. 658 (1978). Sims. 442 U. v. 74 Mitchell v.. 477 U. 23–24 Mitchell v. Davis. 64. Bd. 1 (1983). 71. Inc. 112 Morrissey v. 58. Mercury Constr. 563 (1968).S. 415 (1979). 451 U.2d 848 (4th Cir. 89 (1984). 527 (1981). Dist. Johnson. 619 (1986). v. Halderman.S. 65 Owens v. 408 U. 103 Monell v. v. 451 U. Co.S. 475 U. 56 Nixon v.S. Pape. v.S. 1993). v. 1995). 62 Owen v. Doyle. 52 Nabozny v.S. of Educ. City of Cincinnati.S. 491 U.S.S. 502 U.S. 105 Moose Lodge v.. Council of City of New Orleans (NOPSI).S. 64. 499 U.. 40. City of Independence. 20 NYLife Distributors. 457 U. 88. Woessner. 350 (1989).S. 471 (1972). 4. 108 O’Hare Truck Serv. 547 (1967). Dayton Christian Schools. 1996). 63. Moore. Northlake. 55.S. 1993). 511 (1985). 1990). 105 Pickering v. 235 (1989). v.SECTION 1983 LITIGATION Miltier v.S. Kyle. 67 Pennhurst State Sch. & Hosp. 54 F. & Hosp. 488 U. 1989). 879 F. Foster. 225 (1972). 117 Polk County v. Brewer. 102. 105 Orellana v.S. 65 F.3d 365 (4th Cir. 407 U. 100 F. 9 Morgan v. 445 U. 65–66.S. 515 U. Texaco Inc. 52 Pennhurst State Sch.S. Okure.S. 95 Pacific Mut. Inc. 89. 63. 179 (1988). Norman. 488 (1974). 97 Moore v. 2353 (1996).S. 731 (1982). Duval County Sch. Arkansas Dep’t of Human Servs. 55. 167 (1961). 78 Norfleet v. v. 114 Monroe v. 56. 312 (1981).3d 837 (11th Cir. Fitzgerald. Waco. Inc. 1997). 424 U.S. Cone Memorial Hosp.2d 429 (8th Cir. Inc. Taylor. 1 (1991). Haslip. Department of Social Servs. 1996). 58. 38–39 Ohio Civil Rights Comm’n v. Ray. 17. v. 44–45. 21 National Private Truck Council. Littleton. 105 Nix v. 465 U. 87. 57. 997 F. v. 47 Pennzoil Co.3d 371 (3d Cir. 451 U. 163 (1972). Tarkanian. Adherence Group. 67. 582 (1995).2d 1244 (9th Cir. 55. 496 (1982).S.. 1995). Dodson.. 7 124 . 1992). Bd. 41. 274 (1977). Life Ins. 488 U.S. 105 Paul v.S. Podlesny. 1 (1987). 90–91 Mitchum v. 6. 407 U. 954 F. Halderman. 457 U. 15 Moses H. 113.3d 458 (7th Cir. 1995). v. 693 (1976). Beorn.S. 9 New Orleans Public Serv.S. 22 Plyler v. Co. 92 F. 116 S. 39 Pierson v. 111–12 Parratt v. 73–74 Pinder v. 622 (1980)... 65. 69 Mireles v. Forsyth. 72 F. 59. 391 U. Ct.2d 1470 (9th Cir. 9 (1991).S. Pearce. 6.

1992). 26–27 Rizzo v.. 49. 47 F. Allstate Ins.2d 720 (3d Cir. 117 S. 9.3d 1226 (10th Cir. 9 Sandin v. Goode. 1995). 104 San Francisco Arts & Athletics v.S. 378 (1987). 27. —. Henderson County.S.. 116 S.S. v. 52 Railroad Comm’n of Texas v. 1992). 1997).S. 446 U. 953 F. 115 S.3d 470 (2d Cir. 74 Sullivan v. 66 (1971). 68. Phillips. Ct.S. 20. 415 U. 976 F. 226 (1991). 104. 109 Supreme Court of Va. 452 (1974). Thompson. 57. 1983). United States Olympic Comm. 117 S.2d 1036 (6th Cir. 719 (1980). 165 (1952). 85. California. Wood. 58 125 . 114 Robertson v. Robinson. 584 (1978).S. 21 Stowell v. v. 68–69. 468 U. 1 (1948). 1995).S. 30–31.2d 1122 (7th Cir. 457 U. 401 U.3d 1169 (7th Cir. 48 Stump v. v. 79 Schultea v. 110 Steffel v. 22 Stoneking v.R. 72–73 Surplus Store & Exchange. 30 Rodriguez v. 38 Sacramento. 1994). Kohn. 101. 63 F. 87 Singer v. 232 (1974). 992 (1984). Pullman Co. 229 (1969). Doe. Supp. 799 (D. 24–25. 411 U. 99–100.S. 65 F. Stroud. 1997).S.S.TABLE OF CASES Pratt v.S. 113 Richardson v. Chang. Ct. McPherson. 349 (1978). Little Hunting Park. 1992). 2293 (1995).3d 791 (4th Cir. Consumers Union of the United States. 15 Preiser v. Kraemer. (Stoneking II).2d 65 (1st Cir. Florida. 522 (1987).S. 342 U. Gardner. 86. 1991). Wegmann. Ct. Conner.2d 788 (7th Cir.3d 1427 (5th Cir. 10 Siegert v. Estate of. 105 F. 31 Scheuer v. County of. Ives.S. 86 Seamons v. 118 S. McKnight. 416 U.2d 386 (5th Cir. 928 F. 1114 (1996). 112–13 Rochin v. Dorton.S. 115 F. Snow. Jordan. 28.S. 113 Shelley v. 52 Russo v. 334 U. 52 Rendell-Baker v.S. Rodriguez. Ct. 117 S. Ct. 973 F. 423 U. 30 (1983). Wade. 115 Stevens. 1708 (1998). 882 F. Lewis. Inc. 1995). 496 (1941). 758 F. 84 F. 35 Smith v. 56 Rosen v. Rhodes. 500 U. 15. 475 (1973). 52 Shaw v. 1989). 1996). 102 Quern v. 22 Regents of the University of California v. 86–87 Samuels v.S. 1995). 13 F. 62 (1990).S. Mackell. 830 (1982). City of Green Bay.3d 110 (2d Cir. Dist. 82. 11 Rhyne v. 62 Rutan v. 66 F.I. Fulton County Sheriff. 396 U.3d 802 (9th Cir. 1991). 483 U. 986 F. 26.. 2100 (1997). 362 (1976). Sparkman. Bradford Area Sch. 81 Riley v. City of Cincinnati. Inc. 312 U. 461 U. 440 U. 332 (1979). v. 32 Quackenbush v. Republican Party of Illinois. 22 Seminole Tribe v. 435 U.S. Ct.. 102 Rankin v. 523 U.S. 50 Smith v. 1712 (1996). 436 U. 18. Co.S.3d 1159 (4th Cir. 483 U. 497 U. 14. 900 (1997). City of Delphi. Gilley. Rowland. 40 Reed v.

2d 591 (6th Cir. 29. 117 S. 72 Terry v. 544 (1980).2d 1440 (5th Cir. 2258 (1997). 434 (1977). Ct. 1 (1985). 1989).S. 312 (1986). Chambers County Comm’n. 1203 (1995). Boggs. Hernandez.S. Corp. 33 F. 108 126 . Artist M. Lanier. 341 U.S. Ct. 89 Warren v. v.3d 847 (7th Cir. Mendenhall. 383 U. 117 S. 31 Vernonia Sch. 19–20. 934 F. 1878 (1994). 89 Washington v. 1993). 392 U.3d 370 (8th Cir. 55 Tower v. 28–29. 1993). v.S. 294 (1991). 467 U. 47J v. 951 F. 39. 478 U. Ass’n. 46. 5. Ct. 897 (1984). 1995). Wiggins. 114 S. 111 United Mine Workers v.2d 1339 (11th Cir.S. 21 Warlick v. 969 F.S. 515 U. Young. Jefferson County. 646 (1995). 480 (1980). 115 S. 7 Trainor v. 990 F. Gibbs.S. Glucksberg. 1995). 53 Wilson v.S. Garner. 62 Vitek v. 891 F. Inc..3d 527 (7th Cir. 1997). 503 U. 40 Wells v. 93 Tennessee v. 115 S. Harper. Virginia Hosp. 54 TXO Prod.S. 18.3d 1285 (11th Cir. 1990). Garcia. LaMere. 137 F. 715 (1966). 27 University of Tennessee v.3d 492 (7th Cir. 14. 21 Vineyard v. 1995). 471 U. 2137 (1995). 68 Will v.S. Boglino.. 367 (1951). 5.S.3d 1297 (5th Cir. Alliance Resources Corp. 446 U. Glover. 1219 (1997). 83 United States v. 1998). Dist.S. 50 Wilks v. Churchill. 3 United States v. 105 Triad Assocs. 20 Whitford v. Acton. 26. 897 F. Brandhove. Brown. 788 (1986). 56 West v. 112 F. 48. 42 (1988). 491 U. Kress. 61 Tenny v. 95 Wilson v. v.SECTION 1983 LITIGATION Suter v. 35. 30 Wilder v. 261 (1985). 906 F. Leon. 1991).S. Seven Falls Co.2d 929 (8th Cir. 97 Valencia v. 509 U.S. 16 Waters v. 494 U.. 10 F. 914 (1984). 58 F. 347 (1992). 1 (1968). 468 U. 61 Thompson v. 92 United States v.3d 731 (4th Cir. Adkins.S. 46–47. 83 United States v. County of Murray. Elliott. 58 (1989). 445 U. 981 F. Jones. 27 Thelma D. 1997).S.S. 498 (1990). 496 U. Albers. 210 (1990).S. 1994). 1993)..S. 85 Turquitt v. Michigan Dep’t of State Police. 44 F.3d 427 (7th Cir. 107. 14. 487 U. Atkins. Ohio. 115 F. 48 Swint v.S. 21 Walton v. 15 Whitley v. Board of Educ.2d 1106 (9th Cir. 92 United States v. Cross. Robinson. Ct. 431 U. Seiter. 6 White v.2d 896 (7th Cir. 443 (1993)..2d 303 (7th Cir. Ct. 501 U. 1991). 18 Washington v.2d 1207 (11th Cir. 471 U. 26. 1992). 1991). 16 Wallace v. Dwyer. 36 Wilton v. 63 F. 475 U. Chambliss. Alexander. 47.

1989).TABLE OF CASES Wisniewski v. 99. 959 F. 51 Young v. 104 Wooten v. 308 (1975). 113 F. 19. 430 U. 50 Wright v.3d 696 (11th Cir. 45–46.S.S. 33 F. 15 Wood v. 1993).S. Perry. 117 S.. 307 (1982). 81 Yeldell v. 1148 (1997). 1994). Romeo.2d 52 (2d Cir. 883 F. 705 (1977). 209 U. 1997). 1992). 1990). Trigg. 49 F. 116 Zinermon v. 1994).S.. 75 Wood v. 110 Wyatt v. 1989). Harris.3d 538 (11th Cir.2d 1276 (5th Cir. Lovin. 112 Zehner v. 1978).2d 730 (10th Cir. City of Roanoke Redevelopment & Hous. 48 Wooley v. Harper. 1995).S. 572 F. Ostrander. 72 Young. Ct. New Mexico Dep’t of Human Servs. 479 U. Campbell. 28 Wolff v.2d 883 (10th Cir.. 16. 504 U.3d 459 (7th Cir. Strickland. 401 U. Cole.S. 17–18 Zuchel v. 21 Wulf v. 25 Younger v. 1992). City of Wichita. 20 Wright v. 539 (1974). 13. City & County of Denver. 418 U. 879 F. 457 U. Cooper Green Hosp. 901 F. 15 Youngberg v.2d 842 (10th Cir.2d 1056 (11th Cir. 113 (1990). 103–05 Yvonne L. Kennard. McDonnell. 420 U. 61 127 .S.S. 997 F. 418 (1987). Tompkins. Ex Parte. Burch. 32 F. 123 (1908). 158 (1992). 14. 25 Zarcone v.3d 600 (6th Cir. Auth. 494 U. v. Maynard.2d 583 (9th Cir. 23 Wood v.S. 956 F. 37 (1971).

S. Morgan. and special-focus workshops. Court of Appeals for the Eleventh Circuit Judge Bruce M. and federal defender office personnel. District Court for the Eastern District of Michigan Leonidas Ralph Mecham.The Federal Judicial Center Board The Chief Justice of the United States.S. Hogan. Bankruptcy Court for the Eastern District of North Carolina Magistrate Judge Virginia M. U. and distributes all Center print and electronic publications. and through the Information Services Office maintains a specialized library collection of materials on judicial administration. the courts themselves. U. including state and foreign courts. Selya. often at the request of the Judicial Conference and its committees. The Judicial Education Division develops and administers education programs and services for judges. court management. These include orientation seminars.S. Communications Policy & Design edits. Director of the Administrative Office of the U.S. U. Matsch. career court attorneys. District Court for the District of Colorado Chief Judge A. produces. §§ 620–629). Thomas Small. U. operates the Federal Judicial Television Network. Chair Judge Stanley Marcus.S.S. such as those in clerks’ offices and probation and pretrial services offices. U. or other groups in the federal system. U. Hamilton.S. District Court for the Eastern District of Missouri Judge Thomas F. and management training programs for court teams of judges and managers. and sentencing and its consequences. District Court for the District of Columbia Chief Judge Richard P. U. Zobel Deputy Director Russell R.C. Courts and seven judges elected by the Judicial Conference. It was established by Congress in 1967 (28 U. By statute. Wheeler About the Federal Judicial Center The Federal Judicial Center is the research and education agency of the federal judicial system. on the recommendation of the Judicial Conference of the United States.S. . The Research Division undertakes empirical and exploratory research on federal judicial processes. the Chief Justice of the United States chairs the Center’s Board. through the Interjudicial Affairs Office. Its Systems Innovation & Development Office provides technical support for Center education and research. Its Federal Judicial History Office develops programs relating to the history of the judicial branch and assists courts with their own judicial history programs. which also includes the director of the Administrative Office of the U.S. The Director’s Office is responsible for the Center’s overall management and its relations with other organizations. Court of Appeals for the First Circuit Chief Judge Jean C. The Court Education Division develops and administers education and training programs and services for nonjudicial court personnel. Courts Director Judge Rya W. continuing education programs.S.